Petition for Writ of Certiorari — Mobley v. United States

Supreme Court brief1992

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Text

99+ 279 AUG 13 1968

OFFIOE GP THE CLERK

IN THE

Suprenwe Court of the United States

OCTOBER TERM, 1992

GERALD I. MOBLEY,

P ‘54 .

t ‘cite 7

UNITED STATES OF AMERICA,

Ry SPOTMAU ¢

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR WRIT OF CERTIORARI

WILLIAM J. HOLMES

Counsel of Record

Attorney at Military Law

One Columbus Center, Suite 641

Virginia Beach, VA 23462

(804) 490-7807

ROBERT A. PARKS

Captain, United States Air Force

Appellate Defense Division

MARY C. YASTISHOCK

Major, United States Air Force

Acting Chief Appellate Defense

Counsel

Air Force Legal Services Agency

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

August 1992 Counsel for Petitioner

QUESTIONS PRESENTED

her the Court of Military Appeals erred in con-

eludit t the improper closing argument of the trial!

coun which invited the member’s attention to the fact

that ap} id ni expressed counsel’s persona:

belief that appellant was guilty and commented on the

f f tl ‘onse to call various witnesses was harm-

less error.

Whether the Court of Military Appeals erred in con-

cluding thi e itary judge did not commit prejudicia!

error by : no ¢ ’ from the crime scene

wl ic the lé fens vi S never <¢ ble ( examine or revit W

as I“€ ] p rnme [ ; \ qd unreason-

. and its contents to Mi

‘orres on 25 February 1987

EE —eeEeEeEeEeEeEeEeEeEeE—EEEEe—Eaaa

TABLE OF CONTENTS

Page

OPINIONS BELOW |

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

.. THE CLOSING ARGUMENT OF THE TRIAL

COUNSEL WAS IMPROPER IN THAT IT

[INVITED THE MEMBERS’ ATTENTION TO

THE FACT THAT APPELLANT DID NOT

TESTIFY, EXPRESSED COUNSEL'S PER-

SONAL BELIEF THAT APPELLANT WAS

GUILTY AND COMMENTED ON THE FAIL-

URE OF THE DEFENSE TO CALL VARIOUS

WITNESSES 3

[l. THE MILITARY JUDGE COMMITTED PREJ-

UDICAL ERROR BY ADMITTING EVI-

DENCE TAKEN FROM THE CRIME SCENE

WHICH THE DEFENSE WAS NEVER ABLE

TO EXAMINE OR REVIEW AS A RESULT

OF THE GOVERNMENT’S ARBITRARY

AND UNREASONABLE DECISION TO RE-

LEASE THE CAR AND ITS CONTENTS TO

MR. TORRES ON 25 FEBRUARY 1987 15

CONCLUSION 28

APPENDIX A la

APPENDIX B 2a

APPENDIX C 13a

APPENDIX D 3la

— a

ASE S Page

Supreme Court Cases

irizona v. Ye agbhlood, 488 U.S. 51 (1988) (1) 2] 22 99

Brady Varyland, 373 U.S. 83 (1963) 17

California v. Trombetta, 467 U.S. 479 (1984) 17, 20,

22,295

Coffin v. United States, 156 U.S. 430 (1985) 15

Griffin v. California, 380 U.S. 609 (1965) 6, 7

In re Winship, 397 U.S. 258 (1970) 13.15

Mullaney v. Wilbur, 421 U.S. 684 (1975) 13

United States v. Augenblick, 393 U.S. 348 (1969) 18

United States v. Valenzuela-Bernal, 458 U.S. 858

(1982) 17

Federal Court Cases:

Lent v. Wells, 861 F.2d 972 (6th Cir. 1988) 6

United States v. Bufalino, 576 F.2d 446 (2d Cir.).. 26, 27

United States v. Grammatikos, 633 F.2d 1013 (2d

Cir. 1980) 23, 24, 26, 27

United States v. Loud Hawk, 628 F.2d at 1151....23, 24, 27

United States v. Miranda, 526 F.2d 1319 (2d Cir.

1975) 24, 25, 27

United States v. Torcero, 640 F.2d 190 (9th Cir.

1980) 24, 25

Court of Military Appeals Cases:

Courtney v. Williams, 1 M.J. 267 (C.M.A. 1970) 15

United States v. Bowie, 9 U.S.C.M.A. 228, 26

C.M.R. 8 (1953) 13

United States v. Clifton, 15 M.J. 26 (C.M.A.

1983) 6, 8,10, 11, 13

United States v. Eshalomi, 23 M.J. 12 (C.M.A.

1986) 18

United States v. Fuentes, 18 M.J. 41 (C.M.A.

1984) 10

United States v. Garries, 22 M.J. 288 ( :

1986) 18, 21, 22,

United States v. Gordon, 14 U.S.C.M.A. 314. 34

C.M.R. 94 (1963)

TInited States v. Knicke rhocker, 2 MJ. 128,

(C.M.A. 1977) 10

Inited States v. Mobley, 91 M.J. 275 (C.M.A.

1990) ee

Tinited States v. Moore, 1 M.J. 390 (C.M.A

—

—_

—

TInited States v. Strangstalien, 7M.J. 225 (C.M.A.

1977) 13

Tinited States v. Stroup, 29 M.J. 224 (C.M.A.

1989) 10,12

United States v. Swoape, 21 MJ. 4114 (C.M.A.

1986) 14,15

Courts of Military Review Cases:

TInited States v. Goodyear, 14 M.J. 567 (N.M.

C.M.R. 1982) 14

l’nited States v. Greene, 12 M.J 862 (A F.C.M.R.

1982) 24

United States v. Mobley, 28 M.J. 1024 (A.F.C.M.R.

1989) 2

i’nited States v. Mobley, 34 M.J. 527 (A.F.C.M.R.

1991) 3,6

Tinited States YD. Turner, 15 M.J 75 (A.F ( M R

1983) 25

CONSTITUTIONAL PROVISIONS:

United States Constitution Amendment V 17, 22

United States Const itution Amendment Vi 17, 28

FEDERAL STATUTORY PROVISIONS:

10 U.S.C.A. § 867(a) (Supp. 1992) 2

18 U.S.C.A. § 3481 (Supp. 1992) 6

98 U.S.C.A. § 1259(3) (Supp. 1992) z

TABLE OF AUTHORITIES—Continued

Article 39 (a) , 12

Article 46 l

Article 51 (c) *1) 13

Article 80 2

Article 118 2

MISCELLANEOUS:

ABA Standards. The Prose cut On Fu ction, 5.8 (b)

(1971) LO

ampere. coer serene

IN THE

Sapreme Court of the United States

OCTOBER TERM, 1992

GERALD I. MOBLEY,

= Petitioner

LJNITED STATES OF AMERICA,

Re sponde nt

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR WRIT OF CERTIORARI

The petitioner, Gerald I. Mobley, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his

case on May 15, 1992.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals is reported at 31 MJ. 278 (C.M.A. 1990) (Appen-

dix C). The first opinion of the United States Air Force

Court of Military Review, issued on is reported at 28

M.J. 1024 (A.F.C.M.R. 1989) (Appendix D). The opin-

ion of the Air Force Court of Military Review on remand

is reported at 34 M.J. 527 (A.F.C.M.R. 1991) (Appen-

dix B).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on May 1o, 1992. (Appendix A).

The jurisdiction of this Court is invoked under 28

3 S67 (3 Supp. 1992

STATEMENT OF THE CASE

On various dates during August and September 1987

appellant was tried by general court-martial consisting

of officer members at Bergstrom Air Force Base, Texas.

Contrary to his pleas, appellant was found guilty of at-

tempted rape in violation of Article 80, Uniform Code of

Military Justice | hereinafter cited as U.C.M.J.|, and of

premeditated and felony murder in violation of Article

118, U.C.M.J. He was sentenced to a dishonorable dis-

charge, confinement for the rest of his naturai life, for-

feiture of all pay and allowances and reduction to pay

AnDpDroved hy ne convenll

grade E-l. The sentence

a eT Oa oer om 7 Orie mitia Saal “aes oe ee

authority except for the forfeitures which were reducea

to forfeiture of 5300.00 pay per month for sixteen months.

On 18 July 1989, the Air Force Court of Military Re-

: 2% e ae ° ee Pe oe i Te ,

i tne inding’s by deleting that portion oj

view modifier

specification under Charge II relating to felony murder,

but otherwise affirmed the findings of guilty-and the sen-

tence. United States v. Mobley, 28 M.J. 1024 (A.F.C.M.R.

1989) [Appendix D]. Appellant then submitted a Peti-

tion for Grant of Review with the United States Court of

Military Appeals raising seven distinct assignments of

error. On March 13, 1990, that Court granted appellant’s

. ¢°

Petition and ordered the submission of additional briefs

on four of those issues.

After oral argument was heard, the Court of Military

Appeals set aside the decision of the Air Force Court of

Military Review and remanded the case to that court foi

reconsideration on the issue of whether the trial counsel’s

argument impermissibly commented on appellant’s failure

to testify. United States v. Mobley, 31 M.J. 273 (C.M.A.

1990) [Appendix C]. On December 19, 1991, the Air

Force Court of Military Review held that the argument

by trial counsel was impermissible in that it was calcu-

lated to bring the mé eys’ atten

but that this error

,* + . . +L, ‘ ? +] ’ } , . \ ; ; ‘ “Lr A, > | +} “jy?

return of the case to the Court of Military Appeals, tn

court athrmed the origina: opinion or tne Air Force Co

of Military Review.

REASONS FOR GRANTING THE WRIT

I. THE CLOSING ARGUMENT OF THE TRIAL COUN-

SEL WAS IMPROPER IN THAT IT INVITED THE

MEMBERS’ ATTENTION TO THE FACT THAT

APPELLANT DID NOT TESTIFY, EXPRESSED

COUNSEL’S PERSONAL BELIEF THAT APPEL-

LANT WAS GUILTY AND COMMENTED ON THE

FAILURE OF THE DEFENSE TO CALL VARIOUS

WITNESSES.

Repeatedly throughout his closing argument, the

enn : lieit] ] afer log} 1 + highligh‘

counsel implicitiy lade reterences designed Oo nignilgen

and exploit the fact that ai pnellant had exereised his constl-

i eardoe ] ] ee ‘ - 4 4 4° 3

utiona!l and StatlUulory lvl no to tesStily on nis own

behalf. The relevant portions of the

forth as follows:

sergeant M yblev, \ hy didn’t you go back to the NCO

club and cash anv more checks? You didn’t need any,

money? No. The NCO Academy lasted for

er full week. Sergeant Mobley, why did you

cash but a $15.00 check when you have the evening

ylanned at Tootsie’s? Were you scared to go back to

) might recognize you?

minated with extreme prejudice,

\ | . . — = r4 . .

reveant M pNiey, Is VWilere | Can | neure

ut what vou did next

NOW. nere Se

You know omething’ else, Sergeant Mobley, what |

‘an’t fi@u ut is. how that shoe print got on the

‘ re

: é f . | | "(1 . + sours F + 7)

window? Was it there when you were trying to

nave to prove why

n he anv of those

f OT if /) COrEeE

(/ Cil 7 ray, Cre

emphasis added

‘court where vou a

] .

al vbod\ ner

OWS £F rempnasis

ee ee

)

call attention to the fact that appellant did not testify and

h; f é \\ ina? Pres crue ( ~ Vy 0) \ |

pellant could answer. Furthermore, they must not stand

s “harmless er) na ving either the four-step tes

rrom Le 1] Sf] | vA 6 972. Y ) (Eth Ci LOSS )

r a broade Otality of the reu ances” test, it is

clea tha this Case MUST De corrected

rhe ( Sing argun l | ria Dy tne prosecutol

whiecn catlied Tor an answer, and ibsequent comments

On the Tact that they remained unanswered were not 1n-

advertent or accidental. Rather, they were deliberately

Inserted mntt ne argumen D\ ne trial counsel 1n a Con-

ecause Ne i] ho eSUITY. l S bevond debate na ne

»wonm +4 . m~mwawnt cl WAN the 2 al]; +? a ‘ hon.

argvument COM Mented upon LIit appeuants raliure LU Lt

iif sea] Lad nnal ; ‘ ) 1) “) ]y z= +}

lily | ne rnetorica!l Questiol were aqaaressead to tne

pellant in a manner calculated to bring attention to his

silence.” United States v. Mobley, 34 M.J. 527, Appendix

B at p. 3.) or that they were impermissable (“The argu-

\ MS < clil ‘ A «

ment improper!y highlivhted the appellant’s failure to

testify, a decision that is protected by the Fifth Amend-

It is also axiomatic that a “trial counsel cannot com-

ment directly, indirectly, or by innuendo, on the fact that

’ ‘

an accused has exercised his constitutional and statutory

right to remain silent at trial”. United States v. Mobley,

31 M.J. at 279, Appendix C at p. 10; Griffin v. California,

380 U.S. 609 (1965): United States v. Clifton, 15 MJ.

26, 30 (C.M.A. 1983); 18 U.S.C.A. § 3481 (Supp. 1992).

As Judge Cox noted in his opinion, not only did the trial

counsel ve) e into yroper argument, but

the record and the words seem particularly focused

on the accused silently sitting in the courtroom, being

{

+} . : lL, 4 |

bombarded with que ons at he could not answe?

ly +] ;

nd ne l ening’? tO i SW e . na he Cf ild not con-

; ; ry) } ‘vy } .

es pne LIC effect of the technique used |

4 | ’ _

} ou { ] » a0 (il) vhat ne could not do

} } 1 . 1

(| ‘ ha iS ; CYOSS ¢ mine mute at rendant

1] . L «+h Lai , 1

: MIME A ne ne if (jue lONS, nen imply tne

quest ! ne oped { it Irom appellant

f li) f +) +i) ' . ’ .

elul read ot the re argument persuades us

; ‘ ] ] ]

l | ] = lal ( ! Ss comme i i eq tne

] “ — oe Pe TETT Ee ‘ -rl i : ; L,]

ounds of oratorical mou h and became objectionable

5 | 7 " ] 1] ? "

as UNIial commen f ne appeila s deci 1O ni 0

: . ’ :

+ +54 . } 4 >. 4 £4

estifv in his own behalf. By innuendo ey shifte

’ . ’ ’ .

, + , " > ‘ ;

) irden rT prodquecing ¢ 1d ce O ne } f an

VW} ‘ jlent 7) 1))°1 Jy t } 177 ’ ry? t

O SH Sli 1} CO ) ) } A COU ~f eS tg ]] (>)

1} ] , 7 ]

\ is ) ye mabe Dec ist ] { eva APT) S

. . : : ;

infairly exploited the appellant’s decis not

4 +s f.,

eSULIT\

[7nited States v. Mobl UR 31 M.J. 273, Appendix U al p. 2.

The government’s theory of the case was that only appr

lant and Mrs. Torres were at or in the car that night and

that there were no other parties involved. Since

Torres was unable to testify, the only individual whi

could answer these questi ns, in he view of the

counsel, was the appellant. It has been held that when

questions are asked and the answers could only have c

from the accused. and when the trial counsel argues that

no such answers were forthcoming, the trial counse

either intentionally or inadvertently, has made an im-

proper comment upon an accused’s right not to testify.

Griffin v. California, 208 U.S. 609: [7nited States ». (,oOr-

don, 14 U.S.C.M.A. 314, 34 C.M.R. 94 (1963); United

States v. Saint John, 23 U.S.C.M.A. 20, 48 C.M.R. 312

(1974). Thus, as in the instant case, when the trial coun-

sel specifically directed numerous questions to appellant,

called upon him to answer tnose questions and repeatedly

~ '

ont

- —

—

pression

2 LLL eT

el even went so far as to call numerous witnesses who

ined that the document (and appeliants story) were

> oh } _ 4 sae . :

It is readily apparent that the governme! did not use

his statement for any purpose as substantive evidence.

Fath it v ly as a means of attacking appel-

Bv offering this state-

ce. , ee ere le

ment ane which was explicitly de-

17 P —

med to collateral and relatively

m P 1] ’ 29 ° , ] a+ —— +#n+0

iInin ortant parts of appellants prior exculpa Ory SUA

] ; Rler anf . 4 lo retratea

ment. tne government directiy atten nted to demonstrate,

] , + +4 { ]

nd specifically argued. the perceived untruthfulness of

: 1° %% ’

] t t t va hat ‘ *) t Was *) "liar a} ) he

the statement and tna anpe n Wa a lla} when Nn

. , : ; : ’ .

denied committing the ec] argved offenses In essence 1e

] ] ; ‘ { ] thea form

tYlal CoOunsé nut tne app an n ne ana in Sa Nn

» 1 : ; , d ‘

of his statement nd then called witnesses to rebut the

re ’ f ae —e > 4]

erce ec] Tes nN )? ] 1 eye Was iny (i¢ 1D )

} ’ ] , +} 4 try y + Ww: ~

+» ‘ counse s mot ac Nn rodu 1p LS s mony l a

" > ‘ 1]. } + 19)

] ] ++ ‘ iy )

erased during ! ciosing argume! Re atedly, tne 0

OlIN Sé ce] med that the estimonyv or tne arious gvovern-

‘ | ‘ . an 4

meant witnesses nce¢ ? nye ! no} i ‘- ‘

} ] +] +

‘ 4 t ‘ ‘ ‘4 cA ‘ ‘ ‘

lay

\l ' weil - © 4} ' 1} vou have

? y y 7 FY

+ ' , =AaAnNne ' y ~

“~ t t LiImUuUls U t i t i i

— TJ sy m7 Here Qe hie IS

; ~ | if t peca sot it Wal c ‘

2 }

5 } : ideqd

—_

n t! 7 f February when you talked to

) ty Hesskev

> . ‘ + ~ | IN

z \ Reawn and Sergeant Du esskew

] ? rat COS is @Gdecisto) tO con po na

u a ,

rind | UD empnasls

; f i j |

aqcdeda

a | 1] } +7 y 1% ‘ 117° friends ‘ 1)y*

Seroreant I Dit DECCaA US ‘ UOul 4d iS,

, te

f a

] > aT ) no a OH {Oil O S

' vy ~ =~ ‘ s —

] ldad

(7 ) ely < ied

ed ft B i \ 1 lied to Hesskew he-

‘ i f ( Ceri DOU the consequences,

\ ed out ffect on vour

en et cireums ce ; Mi

Pre ! he court, the reason that he

e 171 ee lary, give you that fair

il | it his guilt sic], except

|] * e’d ever been in the ear.

] 7

e | kne om he reason was, he

had tir vhat they had on him,

e t] hoped would save his life.

| discover the nature of the

rosecution’s evidence against him And, here

es f d (emphasis

Liat

()} a a7 ( tel v. 19S7. the accused is asked

eX] lion of | scratches. He comes up

f ! whoppers That is but one

xample of the utterly unbelievable, the utterly

. have been floated throughout

his eas began on the 17th of February 1987

rvought forward, when the

: t not ge else, he had nothing else to base

Clearly, the implication of this argument was that only

ruilt eople lie, and since appellant had allegedly not

d th mplete truth in his prior statement, therefore,

e must be gu and attempting to “cover up” his in-

eEmMe? In Lact } e ria CoOunseé ] f xpressly argued this

ery point to the members on two separate occasions.

With regard TT TT eXpDress

trlai counsel as utn

estimony, it is preliminarily

? ° ’

nounced aS a tactile on tne pal

(‘ourts And ~ ich assertions

onal conduct. See ABA

f LpieTtioO) 5.8 (b) 197]

M.J. at 30, n.5: United Stat

TT yate a Sta a

‘4 7 7

STONGATAS

Unite d

falsitv of anv evidence or

noted that it has been de-

4 ; a< ] » 4 os ie4 _

of counsel by the Military

be unprofes-

Prosecution

States wv. Clifton. 15

Fuentes, 18 M.J. 41

Knickerbocker, 2 MJ.

T hie

Y /

Ee ee

A LT EL ELLE ELLE LIE LS LLL LELLLLLA OOE

—

, } mned a trial counsel! ior Ca Ing

when the ; is hac 1 rined an

. » | . S|

‘ i al mc on? Fe ren ents Wi! Cf)

| , Sf ] \ 4 SFO

6 y ’ nel nade DY ap-

: . ; }

, ie I ° ‘ sf + : 9yY) t T 1)-

\ aw i) \ i \ ‘ ‘ U =)

7) | ?

, "Ayn t Yn. { ¢

rye - Wes : ( } I ‘ t

° ’ 41

prine eS and rendaere f )} l I ( eerning ne

tfriith ar + «) + Va) ‘ ] " r r At er 4 hea

- ry i

rntrn } | ; + 4 > } ‘ ¢ nel

i < : :

~10) mecance , ne t ? t ]

7 | all

‘ +if a4 4 a0 Th1 +} } } y )

eSULY a ris | ls, Cc ‘ t we

fateme} ( I

‘ae 1)) an I ! ‘

A cA }/} C

offensc )-

}

~ y ‘ vy? ’ |

()] ( { r

{ 424 } | 4

no eS T\ Wnae?l (

, } .

aS We! al l », VU c .

meEeNnT oO} hDwe } t

a+ +747 ’ ’

a ri i Tie LUT

yl ;

meen { ‘

ita +h ' AMO} =~

: ¢ ‘ ?) + >

; . j

Was ‘ ~ ‘

nellant nad not Ut ‘ wut

74 . 9) ‘ f

i lL aAlitl,

eAalse ne Ww: ~ { |

in oO ‘ I

< cll &

ease if ni

‘ 7 } Cc

vcovernment’s bu }

15 \7 Ty 7

> 1()4 } y y Oy t ‘ ‘ ¢

‘ : cA —

c . + hy }

{ t ih c ‘

ne ) f (7 ‘ 7) ? t

: .

’ 7 | ‘ 77°) =? 1 > l ~ -

wid i < <

: a

of an accused is not permitted when the accused does 1

. {’ . ’ | —_ , ‘ »] ? . , )

nr” TO) ich impeachment and nterences. the gover

, ak 61,9 ..7 ~~ "t" :

iowed ©) KIC} the doo} in whe nN ne de

nse cd not even try to “open it”. The Court of Military

an accused in an attempt to portray him as a liar so

0 infer h vuilt of the charged offenses is a “nerver-

on of justice ind an “abomination.” United State

Stroup, 29 M.J. at 2382, 234. This same conclusion must

be reached in the case sub judice where appellant did not

testify or place his character in issue in any manner.

the trial c He ae "

ne trlal counsels argument was

A third way in which

Improper and violated appellant’s constitutional and statu-

tory rights was his repeated comments that appellant had

a duty to call witnesses or to produce evidence of his inno-

eenee. During the Article 89(a) session where proposed

nstructions were diseussed, the trial counsel asked the

- , . 4 | . ae t+ ne 74

Vlilitary ulgve to instruct the members that certain wi

4 )

hesses mentioned | I)

by the defense during voir dire had not

ctually been called to testify. The military judge refused

to give the requested instruction on the basis that voir dire

vas not an evidentiary matter and that the instruction

Was unnecessary.

Despite this fact, the trial counsel argued this very

nt in his closing statement on the merits of the case:

But, you remember promises that you’ve been made

it the course of this trial. If vou for in-

nce made a promise during the voir dire section

: al that you were going to hear a myriad or

= r V esses come in here and talk to you

1 man’s exempla? ife, his family life, his

] ie Calree!l

After the defense interrupted and objected to this argu-

militarv judge stated to the trial counsel.

“You’re arguing questions asked on veir dire. You may

lence and inferences from the evidence.

the trial counsel immediately responded:

—

Martial (M.C.M. ve expressly prohibited such an in-

ran wal Ty atod C1 ites 2. Sivoape, ? 1 M..J.

14, 416-17 (C.M.A. 1986); R.C.M. 701(¢), M.C.M., see

ited Sta G year, 14 M.J. 567 (N.M.C.M.R.

82). In tl ! th ‘ial counsel made this argu-

mmediately after his requested instruction on this

t was rejected he military judge. Because

rum onveved tl] mpression that the defens«

c an | | } ( tne Or TO WD) en) ( vidence

d the men draw an interence

Tl me argu t} rh clearly improper, was

‘ i i

e xv second time by the ‘counsel. The trial counsel

| the membe lyaw an inference about

] > .

( L¢ ( onexIst @ »: evidence concerning

( Y n ( nd went to Lootsies (a

ea] med statement. based on the

] 1 } 1 ° :

) nlp e hat bumper sticke

T T , ,

} é T } () f ~ \s ne trial

, { | - + ‘

+ ( ~ le} \ ] né e ] ed

t ) ( ) (\? nore Ws no el

* ( ( yy ne } eTT ne pase

ry 7 tT} fale nse hac] ")) ohligation

| | al IPatl

tT) ] Csy°cre » { 0) ( and ism

enti that a lan va not

} | fi Tana, 3 ne 4 | ence of ich

( ence h had | admitted nd !‘e-

sented / e | ch had raised th l¢

(>) a u ‘ ! ') could he nferred to

e untrue. In 1 th counsel even went so far as

1 Tf ( Ist the defe} ( did not 1]

SU Wi { ‘ if rie { ( uld ( nelude tnat “there

: :

10 ly ch alibi and that appellant

; PNulitv. Cle: Vy, SUCN an argument 18 patently 1m-

. . A ‘

rope) hla it was a direct attempt to shift the burden

of proof onto appellant and to create a presumption of

guilt since appellant failed to call a witness who would

have established his innocence. That such a contention

is Impermissable is an “axiomatic and elementary prin-

ciple hose enforcemen ies at the foundation of the

adm} | iOn) if Our crim) al law.”’ In re Winship, 397

U.S. at 363 (« y Coffin v. United States, 156 U.S. 480

C.M.A. 1970). Additionally, 11 not proper for the

C mmen n e tallu) of the defense to

, ee ea \7 7 , { 1 ‘ , "ay

' yy to ask the Membe) » draw an infer-

( Ce a () any SUCI Vv] f mignt have said [ nited

ile Swoape, 21 M.J. at 416-17; R.C.M. 701(¢). Cer-

le Court cannot condone or sanction

Il. THE MILITARY JUDGE COMMITTED PREJUDI-

CIAL ERROR BY ADMITTING EVIDENCE TAKE®

FROM THE CRIME SCENE WHICH THE DEFENSE

WAS NEVER ABLE TO EXAMINE OR REVIEW AS

A RESULT OF THE GOVERNMENT'S ARBITRARY

AND UNREASONABLE DECISION TO RELEASE

THE CAR AND ITS CONTENTS TO MR. TORRES

ON 25 FEBRUARY 1987.

In a pretrial motion, the defense requested that a

evidence tal en from the vehicle w! ich was the appare nt

situs of the a eyed ffenses be suppre ed because of the

fact that the government released the car before the de-

fense ad been en Lne Opportunity i! ect or examin

it. The military judge denied this motion.

On 7 ebru: ry LYS Mr. Torres’ car w: e1zecd b\

OSI and A”?D and transported to an impound lot. On 8

Kebru; ly L987. Deter rive He kew collected various niec .

of evidence from the car to include hair blood and semen

| i 4 4 )

amples and various piece i paper. Additionally, some

apparent prints were revealed. At this time, the car had

“several hundred” blood spots on the driver’s window, the

windshield, the door frame, the door, along the door

handles and the arm rest, the bott panel under the door,

on the seat and on the seat belt. Detective Hesskew took

samples of some Spot of blood and ‘“s lectively remove

blood samples from each area’. Detective Hesskew meas-

ured these “several hundred’ blood stains, determined

their size and shape, their angle of impact with a calcu-

lator and traced the trajectory with strings.

The car was retained in the custody of APD under the

direction of Detective Hesskew from 7 February until 25

February. On that date, the day after appellant was

apprehended and placed in pretrial confinement and the

very day on which charges of murder and attempted rape

were preferred against appellant, Detective Hesskew re-

leasect the vehicle to Mr. Torres Detective Hesskew stated

t és

that the car was released because it was of

value to us

no further

Although Agent Brown and OSI were ad

vised of the proposed release and of the vehicle and asked

if they had any objections, the defense was not provided

the same courtesy. In fact, the defense was not notified of

this fact until mid-March when the government finally

provided the defense with a list of evidence in this case;

Appendix at p. 3, 28 M.J. at 1027.

At trial, the bulk of the government’s case which in-

criminated appellant was located in the vehicle or was

derived from evidence found in the car. Appendix at 3;

28 M.J. at 1027. The government presented evidence

relating to the hairs, semen and blood, prints and papers

found within the ear. Additionally, Detective Hesskew

tesitfied as an expert in analyzing blood splatters and

opined the relative positions of the victim and her aitacker

and the manner in which the injuries were inflicted. This

evidence was doubly effective at trial, first because it

purported to explain a gruesome, unwitnessed crime, and

second, it was scientific evidence being offered by an ex-

pert. What rendered this evidence patently unfair was the

it guaranteed this evidence was

' ah oe Me a " epee sane

irrefutable wnen they Gisposea Ol ne evidence. Phe de

fense did not have the opportunity to examine tne car

and determine the respective ocations an relationships

between the various blood stains and other evidence relied

on by the government, or to look for the existence o1

absence of any other evidence because of the release of

the vehicle back to the husband of Mrs. Torres. There

fore, they had no meaningful way to impeach Detective

Hesskew and his expert opinions, and the appellant was

deprived of any meaningful opportunity to have a fai)

trial,

The Due Process clause of the Fifth Amendment, the

sixth Amendment right to confrontation and compulsory

process and the guarantee of Article 46, U.C.M.J., to

equal access to Witnesses and evidence were materially

violated in this instance because the government know-

ingly failed to satisfy its duty to protect relevant and

material evidence and to make it available to the defense.

It has been held on numerous occasions that the govern-

ment has a duty to use good faith and due diligence to

protect and preserve evidence and to maek it available to

the defense. This Honorbale Court has acknowledged that

a criminal! accused has a constitutionally guaranteed right

of access to evidence and to obtain evidence material to

his guilt or innocence or relevant in sentencing. Cali-

forma v. Trombetta, 467 U.S. 479, 485 (1984); Brady v.

Maryland, 373 U.S. &3 (1963). Due Process has been

defined to be a “standard of fairness’ which requires

that a defendant be afforded a ‘‘meaningful opportunity to

present a complete defense,” and that he cannot be ham

pered in his preparation for trial. California v. Trom

betta, 467 U.S. at 485-86. The test for determining if

Due Process has been violated is whether the loss, de-

truction, or unavailability of the evidence has “diminished

the defendant’s opportunity to put on an effective defense.”’

California v. Trombetta, 467 U.S. at 486, citing, United

States v. Valenzuela-Be rnal, 158 oe 3 R5S. R73 (1982).

—_

—

‘

L Ss See 7m

+ ~ + — ~

25 i) <f' poms

; = 2s

r - ¥ .

oy | a

f >

a“ pe

J -

ieiatiaiieieaieanialateai 22 a ee a a aaa

Yt)

cause of fac hat he wore three “hats’’, that of

chief investigator, the examiner of the car and an expert

on blood splatters, Detective Hesskew had a vested in-

terest in seeking to avoid any criticism of his case, his

ivilies 1n eXamining the car or his conclusions con-

cerning the blood splatters. Because of his deep and

continuing involvement in the investigation and prosecu-

tion of this case, the unilateral decision of Detective Hess-

kew to release the car to prevent defense scrutiny of his

work cannot be deemed to be made in good faith sufficient

to excuse the resultant loss of evidence with regard to

the defense. Detective Hesskew was the only individual

who thoroughly examined the ear. It is not beyond human

experience for one not to want others reviewing his exam-

ination and chalienging his thoroughness, methods or con-

clusions. It is the presence of his interest which further

taints the government’s decision to return the car which

had previously been retained and held as material evi-

dence. With the evidence preserved, the Defense might

have employed an expert who could have retraced Detec-

tive Hesskew’s steps and perhaps effectively criticized

or ameliorated his use as an expert at trial. Detective

Hesskew’s release of the car prevented this criticism.

As a result of this action, the defense was completely de-

nied the opportunity to examine the car at all—rendering

the defense totally blind to whether the car contained

exculpatory evidence, or even a rudimentary basis upon

which to eross examine the giernyergl unrefutable

expert who doomed the appellant with his ability to opine

with impunity

Due Process and fundamental! fairness, not to mention

the Sixth Amendment and Article 46, are violated in

such a situation where the government is allowed to

benefit as a result of their knowing and conscious deci-

sion to make evidence unavailable to the defense after it

has been used to the substantial prejudice of appellant.

learly, the leading cases in this area are Arizona v.

Youngblood, 488 U.S. 51 (1988), California vu. Trombetta,

167 U.S. 479 (1984), United States v. Kern, 22 M.J. 49

(C.M.A. 1986) and United States v. Garries, 22 M.J. 288

(C.M.A. 1986). While those cases did not find reversibi

-a4+t ra | . +3 9116 » fons : 4 } 4h, ~~

error with regard to the particular facts presented therein,

speecine prineipl es of [aw were announced wniecn are appill-

sions were intended or anticipated to sanction the destruc-

tion or loss of the crime scene of a murder after an accused

had been charged, but before the defense had been af-

forded an opportunity to examine the situs of the res

gestae. Even in Youngblood, the case most a ave to

the prosecution in this area, the Supreme C spe-

lly noted that the state had not attem} ted to use

any part of the evidence which had not tiasty been

preserved and implied that a different result proba

would have been reached if the state had intentionally)

sought to gain a tactical advantage over the defendant.

Anmzona - Younadblood. ASS U.S. 5] i 1988).

It is submitted that this very situation occurred in the

case sub judice. Here, appellant was materially and

substantiall\ prejudiced as a direct result of Detectiv

Hesskew’s decision not to retain the car as evidence.

The government was able to examine the car and use

that portion of the evidence inside which it deemed ap-

tbe, teage in reaching expert conclusions, particularly De-

tec! Hesskew’s blood splatter anal ysis, but a

uae extent, the testimony concerning the other items

found in the ear such as hairs, blood and semen, and the

various papers and prints. oa » this affir

by the government of this evidence, the defe

denied access to the car od “several hundred” blood

tains for which samples were not taken. Certainly,

situation where the government uses the evidence to im-

plicate an accused, but then knowingly mal

a Nee 1} ‘ vail: hle to th , ; *T tha loafea 72 and any nd

ience uUNnaVallabdi€ O Lfit court Une cit Lense and any Liitic™

pendent testing is not consistent with Due Process

fundamental fairness or Article 46.

a a eS

\ ‘ } ~~ ( é f a | nN

he government h: reserve evidenc

‘\ I ; p pe ¢ eCLed VY a signincan ! € nN

apne

The } ( PC ~ {] I f } iny nit ra +4 ] ‘e

4 j ? sy |

a LSS Lron a and Garries each were an-

l need Wwe Yr: é Stal case arose According

tne governmen na S agents were, Or certalnly Snouid

nave deen, aWare i ne requirements or tnose decisions

Lf reserve na aword aetense access to evidentiary items.

Vespite this Tact. specilic aspects of those decisions were

-_ a : +] - oe 4 25) : | :

mnored and Knowing !|y violated 1n ne instant Case. i ne

materiality and crucial imp ne f the car and its

Contents Was appar n and speciiicauly Known D\ all

— S TL, ”_ } east tal . wee, anil : 1,

Parties. The government had taken the car into cus Oa\

as evidence and retained as sucn i0r 2 WeeKS., i

Was their expressed opinion that the evidence found in

. ~ a ] ‘ ] > ] 4 - . > — > ~- y

the car would be the key in determining the identity of

+}, . " + yee) + . on > o++ _ + . +ae0% 41.

the perpetrator and in attempting to reconstruct the

events which occurred. Not only did the government

retain the car and its contents as evidence, it was affirma-

tively used in preparing the government’s case agains

appellant. In fact, the evidence from the car was the

most important evidence available to the governmen

against appellant. Yet on the very day on which appel-

| h murder and attempted rape, the

government released the car back to their initia

in the investigation and the husband of the victim. Not

surprisingly, the evidentiary contents of the car were lost

forever. No notice was provided to the defense of tl]

impending release of evidence and the defense had no

opportunity to examine this material and crucial evidenc

which formed the basis for the government’s case agains

appellant and the resultant findings of guilty which were

announced by the members.

| ’

venicie aS a crime cene O conclude na ners Ss no

CONStILU na S ry, QI diClai ruie WNHIC! req req

97) ; ] . +h —

police autnorities to retain na preserve the vehicie fo)

} ] ‘ ‘ o 4 »)

defense examination \ppendix ; i 28 M.J. at 1023

i S su tted tne [ ( I nis nstance was

] 2 ~ . 4 lL, 24

much more than crime scens Rathe had its

\") ? 1) nae! f en t rec yT TNheé *" oe V-

—_ ] } . 399 L,] ] 4 y es ba | } } ] , ¥ . ) 77)" qd and

era al eq yi¢ 1 STé 5 \j ( al nee measured a I

} T ry {

iad (j Le f t if¢ A Vl (I ats de ens¢

a al ve :

or anv other individual. was not permitted to examine

» , 7 . ‘. | }

B : { Car CO! ] rent wniec! Was seq Dy

he ¢ ! n their « vains npellant. the re-

quirements of Ae and Garries ce) nlv applied and

P , 4 2. 2 ae ] P . +3] +

andated preser\ n of the vehicle, at least until the

defense had an opportunity to examine it. Such a rule

] . 1] ] '

would not impose an unreasonable burden on law en-

forcement officials and constitutes the bare minimum in

) evl-

terms of fundamental fairness and equal access t

dence. It is also of no consequence whether the car was

likelv to have held exculpatory evidence. It is beyond

. } } 4 . cee Ee 4 x. ‘

restion that the ear held. at the verv least, the evidence

necessary to craft a competent cross-examination of the

vernment’s expert. However, since the defense was

never afforded the opportunity to examine the contents of

car, appellant’s opportunity to present a complete

and effective defense was diminished. Accordingly, appel-

: ]

rht to Due Process and his right to equal access

} * > -alas 1 an we ant? .

under Article 46 were violated anda corrective action D4

This Court has not determined a particular remedy

been established that material evidence has

been lost or destroyed by the government and where no

— a

con rabdie aqaence - ¢ ) ne detense. Thus ne

. } ‘ ©) } ) h y yY) 1; ‘ "Oo ‘ y . , *"19OT

Wwelery may tas on ic emecdies aS are appropriate

protec he fundamental mgnts or appellant United

Cintes K 1?) \I =) ‘ nn ] ited States ,

' ' > ee ‘4h. . 7

H 628 F.2d 1139, 1151 (9th Cir. 1979) (e

, , or 7 17

ned |six of eleven sittin yt. denied, 445 U.S. 917

99 . .

LYSO . = | [ I ¢ STA (FTAMMALLKOS 009 I 2d

5 | 7 ) ‘)

Vile 2a 4 LISuU

: .

Several courts, in ng the Air Force Court of Re-

’ . é i née ur Wl ct ry?) : ry ancing

t I es 1 _ ~s { (ie-T t \SSeS-

; } .

} tne é nmen } = meCromMs. S QO} cle roved In

>} i gg yt *?) 1 hy 1H oY no tne

SUCT] ad UCase, > WUUIU MK A! LOLIICU } VDalidll a it

; , 66.)

ui: f the government’s cond against the “de

193 27 ‘

yer I f cLIce I { Act =e as ne mos appro-

ite means concile the competing interests in

J j vy / 7 +)

ex, ~ la Ons { ( NT ¢ ( (7VEeeHe, iz \M..J SH.

| \ T> 7 ) ’ j y

y y P| VY ¢ Pi

H " { rer NT¢ Us iz mee re t 1) io «| 190 vif

} " FOr ’ ) >

L980 [ l States Viranda, 526 F.2d 1319,

1994 » | 7 ) ») 3) QO”

Louw (| ( ! | ‘ i-) cert (i ¢ ed 129 | > “ ] (1976

) 1

I} aa 217 Spec Cc Tact Ss Se ror Nn in (7) ‘

y y ® ; J . |

L Hawk, Toreero and Miranda to the facts of the

r 13] ; 7 L,

case sv dice, it is readily apparent that the govern-

. : + ; o 11+ ‘ l- = ly, “alas ] + asp «

ment intentionally and knowingly released the car and

ts contents back to the initial suspect 1

tion who aiso happened to be the victim’s husband. This

ease occurred after the car bad been retained for sev-

eral weeks and used in developing evidence to be used

7 11 rr 4

n the criminal prosecution of appellant. The failure to

give any notice to the defense of the contemplated re-

lespite the fact that advance notice was given to

| ; } : } + + ~ 7 |

and the fact that it was known that counsel would

soon be appointed to represent appellant, constitutes a

{ ] t 4 } 4 .

nifest disregard for the interests of appellant, or any

] + , iy +

( nce ] anvout i COncendts or talr piav or 1ustic

T — . + ] 4 - + } ‘ > v«

I Ss suom ec] tna hese facts clearly demonstrate

+ +] . + r + ‘ + 1; + f > .

Ne ne governmen Was a eaSt negligent, 12 not even

a | + h 4 7 .

more cuipadie, In Talilng to adhere O Sl ndards O1 Ca)

7 > 1 Ia 2. 5 |

quired for eri 1al prosecutions. Kern had been de-

] > “ “> + . + ++ ‘ . }

cided the vear before this case was started and expressl\

1 ¢that +h ' nmont h: P a3 ‘ or i tS

= ed Ne ne vt a Cll Sa Q \ 2 ist VYOOU la l

ni que qa gence to protect and preserve evidence ant

*7 7 7 4

make lt aValiaDle to an accuset ited STATS

Careful prosecutors will notify the defense of the in-

tention to return [evidence], thereby allowing the

Sai ar nahi ae viele .

lefense to conduct an independent examination ol

} » | . 7]

operty and placing on the defense the onus of

| 4 1 . J .

Ue ing tnat properly de retained tor use as evl-

= T1,; i age in an Be ae ;

at tria This should bring to light any non-

? Res = * : an + ? .

pparent exculpato 1e of evidence to the defense

2 ‘ 1) +] . A> . , « 1] :

d foresta he creation of an appellate issue.

7 ,. © } a

other words. this case does not do away WIth the

{) . )] ] ) (re) S ry T 1)) S

l < { > Ce avel»ncCile 0 } OS-

] od 7 +

in cle ey , 0 dence Vore er, ] qaoes

7 ¥ |

f Wa (sé f eT f POSE! HTOTS O pre POT ana

7 } 4 7 |

spe exculpatory evidence and make available

5 one —

al ised tO IS n | is qeTense¢

[’nited States v. Ker : pes M.J. v1 52-5!

This same requirement was ‘epeated

. q +1, . f sla¢tay , = | «+ + «+

Garries where the Court of Military Anneals stated that

snl > n43¢1 +], i / > }

Article 46 entities he defense to equal access to all evi-

7 7 7 r > 2 . 47 at ] . 7 e,

CLE VCE (‘Fi ther Or HO S pare) , ere patory. ] nited

States a). Garries. 2? M..J. at 293. eitinad [7nited States v.

Kern) (emphasis added). The court went on to emphat-

ically state that the better and preferred practice is to

a , . > +] } - fan vatab sylatad a tian Thich sorht

nform the defense of any contemplated action which mignt

result in the loss or unavailability of evidence and to

sermit the defense an opportunity to examine the evidence.

Garries. 22 M.J. at 293. In a footnote,

United States ay.

it was expressly noted that it would be difficult to excuse

o provide reasonable notice to the defense.

the failure

United States v. Garrics, 22 M.J. at 2930 n.6. Finally,

4 . ] leeter 4 . . »+ ©) sanl . r} >

‘t is noted that the duty to protect and disclose evidence

to the defense applies not only to prosecutors, but also to

all] governmental investigative agencies. [Jnited States v.

Turner. 15 MJ. 754, 755 A.F.C.M.R. 1983) ; United

States v. Kern, 22 M.J. at 53: California v. Trombetta,

167 U.S. at 488. Since the specific and recent pronounce-

Appeals were inexcusably

ne Case

ments of the Court of Military 4

jmnored and not complied with in anv regard 1n

the government committed prejudicial error

1S } 4 + + z > | ‘ . . + ’

hy deliberately failing to preserve he vehicle after they

enh judice,

—

] ] 1 4] _ : 1 +] . - ee

nad ised ne evident ( nea nerein in preparing

] , ] ' !

r ( na ! W (| | ( O! Woula mo

rely nave occurred

; ] ae ‘ ’

{( ons qeratiol nes actors cle Vy estapniisne that

tha onve) meant ] h + i nt yoala: 1 tha —— nd

f overnme S qdeilperate adecision to release tne Car an

it nif ) t } } } y t } lafan canri' |

ILS €( ents W | () e eS ie le sf qeprivet

e defense of tl yp prepare a competent de-

ense and the appella f his right to a fair tria I

] | ] ° } ,

as been held on several occasions that where, as in the

nstal | a~t (ies rlIICTIO ( ( cence )\ ge or ey"! ne; ~

‘oJ iherat ? t Nn Wr] ? ‘ms ‘ f se Ty tor]

qaeiloerate, Sant ons Wl rmaiiy ToOMuoOW ‘ } ¢

ri » . 6 4 é . a j

N fate Gramma 633 F.2d ;: 1020: Unite Sta

> ~_— ‘ } 4 > ‘ 4 ]

Bufalino, 576 F.2d 446, 449 (2d Cir.) ert. denied,

1< a9 ‘ T eee ]

139 U.S. 928 (1978 It is submitted tl the govern-

y y+? y ] 7 i lnalh ‘ ] , -> hi!) ‘ . +

Tht ‘. Ct Ciu¢ » =U ( LipJaWIlt and i »X¢ IsaVIt and me

esultant prejudice te eliant 1s so manifest, as to

41 Po? "we } cf, : ] ; ;

question the relial nd fundamental! fairness of the

case §S dice,

4 4 ] 4 . , a ] ‘

It cannot be disputed that the release of the vehicle was

] ‘ey f ] ] ) ‘ ? rl) tr* ‘ )

cieariv a aeilerate and KNOWING at This was a con-

is decision and advance notice of the proposed release

y . ’ + ‘ . iL. 1 +

was even Dl ed 0 US iO} neir recommends ons oO}

7 i: le 4 - :

inadvertent or negligent act. It was a deliberate, know-

; ' ee reap Er

ing and conscious decision made by responsible individuals

in charge of the investigation who were aware of the

significance of their actions. Because these individuals

were on notice of the duty to preserve this evidence at

least until such time as the defense was afforded the

opportunity to examine it by various decisions by thi

Honorable Court, the Court of Military Appeals and vari-

ous federal circuit courts, sanctions are appropriate be-

1use of the deliberate disregard of this duty. In t

: Ss ae

regard, is noted that the time of the release is particular

significant. Several courts have observed that the de-

dence at the end of an investigation whe

: ’ . . , °

tne government has knowledge that an indictment and

trial are forthcoming is a factor which makes it more

difficult for the government to meet its burden to explain

this action. United States v. Grammatikos, 633 F.2d at

1021: United States v. Miranda, 526 F.2d 1819: United

States v. Bufalino, 576 F.2d 446. Not only was this factor

present in the instant case, the car was released the very

day that charges were pre ferred against aj pe llant and

thre very dau that 1 yal dete nse Course Mas de tarle d to

j ‘ mr 3 i Sd i. ; <KY< + pnt 1

represent him. It is submitted that this was not coincl-

dental, but rather that it establishes that the govern-

ment’s motivation was to use this evidence during their

investigation, while preventing appellant or his counsel

from having access to it. There was absolutely no reason

this release other than the fact that the

car was of “no further value” to the government because

[

ae oe a

which necessitated

appellant had been apprehended and charged. Certainly,

this evidence could have been retained and preserved for

at least a few more days to allow the defense an opportu-

]

nity to inspect it. Because there was no legitimate reason

why this evidence was not preserved for defense inspection

when it clearly could have been it is submitted that at

least some degree of bad faith is established which requires

and compels corrective action from this Honorable Court.

It has been stated that the principle concern of courts

in addressing this issue is to ensure that the accused was

provided with the “opportunity to produce and examine

all evidence and to insure a fair trial” and that the judi-

ciary, has a “significant interest to avoid impairment of

judicial integrity that would occur if the prosecution is

allowed to manipulate court processes.” United States v.

Loud Hawk, 628 F.2d at 1151 (Kennedy, J., concurring).

It is submitted that the case swb judice is the perfect

example of how the deliberate actions of responsible

government agents deprived appellant of the opportunity

to examine and produce evidence which was affirmatively

used by the prosecution before it was destroyed. Similarly,

this case is a perfect example of how fundamental rights

of an accused are circumscribed and prejudiced what

= RR, SS RS

the government knowingly and consciously refused to

comply with standards specifically mandated by several

binding judicial decisions. In such a case, it must be

determined that the Fifth Amendment guarantee of Due

Process, as well as the guarantees of the Sixth Amend-

ment and Article 46 to equal access to evidence, have been

violated.

CONCLUSION

The petitioner’s case is a worthy one for a grant of

certiorari. Review of this case is crucial because it strikes

at the heart of our adversarial system of justice: do we

hold the prosecutorial arm of our system to their high

burden of fundamental fairness, or do we reward im-

permissable argument and destruction of evidence with

convictions and the slap on the wrist of “harmless error.”

When the appellant failed to take the stand, a nervous

trial counsel with a borderline case took the wholly un-

reasonable stance of putting both appellant’s words and

his silence on trial. Without legal justification, the appel-

lant was forced to defend a prior statement put into

evidence by the government. He was called a “liar” and

dared to refute it. Then, he was forced to sit mute and

powerless as his choice to remain silent was paraded

before the members as a failure to rebut the contentions

of his guilt. This shifting of the constitutional burden

was the last of a long list of constitutional infirmities

that plagued this case—defects which have been carefully

separated and individually dubbed “harmless error.”

In addition, this court should independently weigh the

issue of whether the appellant was denied his constitu-

tional rights to due process and his opportunity to con-

front the evidence against him in accordance with the

fifth and sixth amendments, respectively, of the United

States Constitution. Specifically, the government shou!d

not be allowed to abuse the adversarial process by hoard-

ing evidence for the express purpose of perfecting their

case and then releasing that evidence to be destroyed with-

out any notice to the incarcerated appellant or his legal

representative. This case is factually distinct from Young-

blood in the critical sense that the evidence which was

released in the case sub judice was used as the critical

convicting blow against the appellant. Following the rule

of the case, this was an impermissable denial of evidence

to the appellant which had the specific effect of 1 ndering

the government’s expert impervious to any meaningful

cross-examination and guaranteeing the inability to refute

the scientific evidence which the government used like a

club on the powerless defense.

Surely, this Honorable Court does not wish to condone

this type of activity. This case provides an excellent

opportunity to redefine the parameters of governmental]

conduct within our adversarial system, and to reaffirm

the basic tenets of fundamental fairness which are crucial]

to any respected judicial system.

Respectfully submitted,

WILLIAM J. HOLMES

Counsel of Record

Attorney at Military Law

One Columbus Center, Suite 641

Virginia Beach, VA 23462

(804) 490-7807

ROBERT A. PARKS

Captain, United States Air Force

Appellate Defense Division

MARY C. YASTISHOCK

Major, United States Air Force

Acting Chief Appellate Defense

Counsel

Air Force Legal Services Agency

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

August 1992 Counsel for Petitioner

APPENDICES

me me eee ew ee

APPENDIX A

USCMA Dkt. No. 63206/AF

CMR Dkt. No. 26528

UNITED STATES.

On further consideration of the above-stvled case in

of the opinion of the United States Air Force Court

of Military Review after remand from this Court, 34

MJ 527 (December 19, 1991), and the supplementa?

briefs filed by counsel, we conclude that the opinion is

correct as a matter of law. Accordingly, it is, by the

Court, this 15th day of Mav 1992.

ORDERED

hat the decision of the United States Air Force Court

Military Review dated July 18, 1989 (28 MJ 1024).

lor the Court.

s/ John A. Cutts. IT]

Deputy Clerk of the Court

ec: The Judge Advocate General of the Air Force

Appellate Defense Counsel (HOLMES. Esq. )

Appellate Government Counsel (SINWELL)

(la)

APPENDIX B

U.s. AIR FORCE COURT OF MILITARY REVIEW

UNITED STATES

Technical Sergeant GERALD I. MOBLEY,

KF R565-86-1085, United States Air Force

Sentence Adjudged 2 Sept. 1987

Decided 19 Dec. 1991

Before LEONARD, RIVES and JAMES, Appellate Mil-

itarv Judges.

OPINION OF THE COURT UPON

FURTHER REVIEW

RIVES, Judge:

At the eonelusion of a 3-week murder case. the trial

1: evita ; EE

counsel delivered an eloquent and persuasive findings ai

)

gument. No objection was lod

y CAr

ged until after the argu-

ment, when the defense moved for a mistrial. The defense

counsel urged that the trial counsel had made numerous

inappropriate comments that encouraged the members

to speculate about the appellant’s failure to testify. While

we find the trial counsel’s argument was improper, we

hold that the error was harmless beyond a re

YULIU

The United States Court of Military Appeals, 31

3 (C.M.A. 1990), set aside our initial decision in tl

s In tnis

ease, 28 M.J. 1024 (A.F.C.M.R.1989). and returned the

record of trial to us for resolution of these questions:

ene te CC CE

comment on, or otherwise unfairly exploit, appel-

lant’s failure to testify in his own behalf?

<. Was defense counsel, in fact, precluded from ob-

jecting to trial counsel’s argument by AFR 111-1,

any local rule of practice, Air Force policy, or deci-

sion of the Air Force Court of Military Review?

3. If trial counsel’s argument was error, did the

o 1S4 SeXy 97 *o? > . ; " : . . 7 208 9146 :

military judge’s instructions cure any harm resulting

therefrom?

1. If trial counsel’s argument was error, was it

)

ha miless beyond a reasonable doubt

31 M.J. at 280. We answer the first question and the

last two affirmatively and the second in tl

will address them seriatim.

Trial Counsel’s Argument

The appendix to the earlier Court of Military Appeals

decision in this ease, 31 M.J.

of the trial counsel’s findings argument. The appellant

at 280-82, contains excerpts

complained in his pleadings before both this Court

the Court of Military Appeals that the trial counsel’s

argument improperly invited the court members’ atten-

tion to the fact that he had not testified. Our earlie)

lls Case examined several matters in detai

lly found no merit in this issue and the oth

matters raised. 28 M.J. at 1027, 1035.

Closing argument is an art wherein the facts and lav

are mustered to produce a persuasive case for the

vocate. Argument is not evidence, but it is an oppor-

tunity to assist the fact finder to understand and inter-

prel the evidence. Within limits counsel can be creative.

We realize that “Ttlhe line separating accept

improper advocacy is not easily drawn; there is

gray zone.” United States v. Young, 470 U.S. 1, 7, 105

S.Ct. 1088, 1042, 84 L.Ed.2d 1 (1985). Each case neces-

This trial counsel wanted to cut a fine line to sway

embers without crossing into obviously illegal argu-

ment, so he did not directly attack the appellant’s reliance

on his constitutional right to remain silent. The issue is

whathaw kh ativan 4 } , 11, ot Be Pi 4 pet

wnetnel nis aiiusions LO Lt 1e appellant » faliure LO testiry

nevertheless went too far.

Clearly, the defensive shield that allows an accused to

remain silent at trial must not be transformed into a

prosecutor’s sword in argument. The Court of Military

Appeals decision in this case affirms the “black letter law

that a trial counsel may not comment directly, indirectly,

or by innuendo, on the fact that an accused did not testify

is defense.”” 31 M.J. at 279, citing Griffin v. Cali-

fornia, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106

(1965): see also United States v. Clifton. 15 M.J. 26. 30

(C.M.A.1983) (deciding it “was unconscionable for trial

counsel repeatedly to emphasize appellant’s assertion of

his rights’); see generally Annotation, Comment or Argu-

ment by Court or Counse l that Prose cution Evid ce is

[Tne tradicted as Amou nting to Imprope r Re fe renee

Accused’s Failure to Testify, 14 A.L.R.38d 723 (1967).

We recognize the disadvantages of an appellate court

in reviewing an issue of this nature. As Judge Cox notes,

we are limited by the “cold, written record” and do not

benefit from actually being present in court “to observe

e| demeanor” of the counsel making the disputed ar-

rumel 3] \I J < 279 sce Arti e bdDI<( } j ne) nis

argume Vas See! and heard bj ne ml ary lag. \\

did not intervene sua sponte.

In his argument, the trial counsel posed various ques-

tions and then answered them based upon evidence that

was before the court, a technique that can be both effec-

t] ina rm ssible Phe de fense Cc Insel q d not ovvect

as the comments were made. When he lodged his objection

in Article 39(a) hearing, the m itary judge pro-

nounced his view that the trial counsel’s comments were

sé

or a ee

merely) rnetoriecal.

attention to his silence. Careful r ading of the entire

argument persuades us that many of the trial counse]’s

comments passed the bounds of oratorical flourish and

became objectionable as unfair comment on the appel-

? ]

lant’s «

ecision not to testify in his own behalf. By in-

nuendo, they shifted the burden of producing evidence to

the 2 nell; | 17} QT sjJlant in ‘Our T) | ‘jal eoinsel’sc

te appellant, Wno sat silent in court. 1€ trial counsels

+7 h3

argument was objectionable, because in a strict legal sense

it unfairly exploited the appellant’s decision not to testify.

: I I e

Restrictions on Objections?

[he defense did not object to the improper remarks

as ney were made. Che lack OT a contemporaneous ob-

; +

. . . ‘ > nlac

recessed court a the Ciose

argument, the defense requested an

Article 39(a) session. The lead defense counsel then

asked for a mistrial because of “Improper argument.” He

sserted that the trial counsel had “fired rhetorical ques-

tions at [the appellant] repeatedly calling attention to

he fact that the appellant did not testify.” The de-

lense counsel sated that he had not objected during the

trial counsel’s argument ‘because of course, the regula-

tion under which we live, AFR 111-1 provides that you

should not object during argument.” He added that had

such an objection not been sustained, he “did not want

tI) > «oy tt ntinag ¢ ’ 31 h tary |

le sition of attempting to derail [the trial

We are satisfied that no aberrant rule prevented the

defense counsel from immediately objecting to the

roper argument of the trial counsel. To be certain

following remand of this issue we ordered appellate gov-

ernment counsel to produce any Air Force or local rule

of practice that might have inhibited the trial defense

counsel from objecting immediately to the improper clos-

Ing argument. No such rule existed.' No Air Force rule

r policy restricted the defense from lodging a contempo-

raneous objection to the trial counsel’s argument.

It is well-established that a prosecutor may strike hard

blows in argument, and the failure of the defense to ob-

ject to improper argument normally constitutes waiver.

United States v. Doctor, 7 U.S.C.M.A. 126, 21 C.M.R. 252

1956); United States v. Collins, 3 MJ. 518, 521

(A.F.C.M.R.1977). Without question, an immediate ob-

jection would have been appropriate here. It also would

have been most effective. Using the defense counsel’s lan-

guage, a prompt objection could indeed have “derailed”

the trial counsel from pursuing his line of objectionable

rhetorical questions. We note, however, that failing to

object durtng argument did not waive the objection. The

objection is preserved so long as it is made “before the

military judge begins to instruct the members on find-

ings.” R.C.M. 919(¢). The deferred objection here was

timely, if not tactically sound. See generally United States

Wood, 18 U.S.C.M.A. 291, 293, 40 C.M.R. 3, 5 (1969).

It is appropriate to consider whether the military judge

erred by falling to interrupt the improper portions of the

The ol ( ( i i I tim ) ne ay llant’s

rt-martial is cor Air Force R lathe 111-1, Muilite

J eG \ tac he R | Ss I Tr) Courts Rule ) 14 ]

\ugu 1984 l ! rohibits argun ot lt icts oO}

cums S I ] ‘ ) Sonali Of ons

into argun t

LE I

aaa nnaa

argument. Sometimes an argument is so outrageous that

the military judge, who “is more than a mere referee,”

must interrupt sua sponte “to assure that the accused

receives a fair trial.” United States vu. Grave S, ] M..J.

00, 53 (C.M.A.1975); see also United States v. Grady,

FB 215 (C.M.A.1983) : l7nited States 2). Ne lson,. ]

35, 238-39 (C.M.A.1975). Here, the military judge

iewed the argument as acceptable commentary that did

not improperly invite, in his words, “attention to the

fact that the accused did not testify in his own behalf.

Of course, had the military judge recognized that the trial

counsel’s argument was improper, he should have imme-

diately provided a cautionary instruction to the members.

R.C.M. 919(@), Discussion: SE¢ United States U. Kilbourne,

31 M.J. 731, 734 (A.F.C.M.R.1990). While disagreeing

with the trial judge’s characterization of the argument,

we do not find the argument was so egregious as to have

required the military judge to interrupt on his own

motion.

II]

The Mistrial Motion

When the defense counsel finally voiced his objection to

the trial counsel’s argument, he specifically requested a

mistrial. Mistrial is a drastic remedy and is mandated

only when “manifestly necessary in the interest of jus-

tice.” R.C.M. 915(a). Declaring a mistrial is a matter

within the discretion of the military judge, and his deci-

sion will only be reversed for a clear abuse of discretion.

United States v. Rushatz, 31 M.J. 450. 456 (C.M.A.1990) :

l’nited States v. Dennis, 16 M.J. 957, 965 (A.F.C.M.R.

1988). Although the military judge erroneously ruled

that the argument was not improper, we conclude that

he did not abuse his discretion in denying this motion.

See United States v. Evans, 27 M.J. 34, 39 (C.M.A.

1988).

So long as justice is served by the less drastic remedy

curative instructions are preferred over the grant of a

‘ial. See United States v. Balagna, 33 M.J. 54, 56

(C.M.A.1991)}. After he denied the motion for a mistrial,

the military judge stated that his instructions would

take care of any possibility that any of these members

might misconstrue trial counsel’s argument as a comment

on the accused’s failure to testify.

Curative Instructions

Even though error was not detected at the trial level,

we can nonetheless evaluate the instructions that were

given and determine whether they were responsive to the

error and cured any harm.

The judge’s standard instructions advised the mem-

‘s of the appellant’s aksolute right to remain silent,

of the requirement that they draw no adverse inference

he fact that he had not testified, and of the rule

hat the exposition of facts by counsel was argument and

evidence. He also tailored the following remarks to

the members:

|Y]ou heard the trial counsel during the course of

his argument of the evidence, ask certain rhetorical

questions which appeared to be directed toward the

accused. ... I think it was obvious to you that these

were |a] rhetorical form of questions and a rhetorical

form of argument, but I do caution you again, that

the accused has an absolute right to remain silen

and you will not draw any inference adverse to the

accused from the fact that he did not testify as a

witness.

Absent evidence to the contrary, it is presumed that

members comply with instructions. Uniied States v.

Ricketts, 1 M.J. 78, 82 (C.M.A.1975); United States v.

Mahone, 14 M.J. 521, 525 (A.F.C.M.R.1982), pet. denied,

14 M.J. 454 (C.M.A.1982). Before the members recessed

to deliberate, the judge provided them with a written copy

of his instructions. See United States U. Turner, 30 M.J.

1183, 1185 (footnote) (A.F.C.M.R.1990). The written

instructions did not include the comments quoted above

on the trial counsel’s use of “rhetorical questions.” How-

ever, this was not error. Neither the trial nor defense

counsel objected to the instructions as given or requested

additional instructions, nor did any counsel object to the

written instructions that were provided to the members.

See R.C.M. 920(d).

Certainly, not every error can be made harmless by a

rial judge’s instructions. See United States v. Grissom.

1 M.J. 525, 527 (A.F.C.M.R.1975). We are satisfied in

ls case, however, that the instructions adequate ly ameli-

orated any prejudice caused by the improper comments.

Althoug h

error, he provided a proper and effective curative in-

struction.

+ sats — 7+ ? mn 4 ee ~ 4

h the judge had not found the argument to be

is,

Harmless Error

Since the trial counsel’s argument contained some legally

inappropriate comments, we must evaluate the resultant

harm. The argument improperly highlighted the appel-

lant’s failure to testify, a decision that is protected by the

Fifth Amendment. When an error of constitutional mag-

nitude has been committed, we can approve a conviction

only if we decide that the error “was harmless beyond a

reasonable doubt.’’ Chapman v. California, 386 U.S. 18,

24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967): accord

United States v. Brooks, 25 M.J. 175, 180 (C.M.A.1987).

To find harmless error, we must be satisfied that there

was no reasonable possibility the improper comments

contributed to the appellant’s conviction. See q nerally

Annotation, Violation of Federal Constitutional Rule

Griffin v. California.) Prohibiting Adverse Comment by

Prosecutor or Court Upon Accused’s Failure to T'¢ stify,

As ( ‘onstituting Re ve rsibl or Harmle SS Error, 24 A.L.R.3d

1093 (1969). It is appropriate to assess the improper

argument in the context of the entire trial. See United

States v. Remar, 19 M.J. 229 (C.M.A.19&5) (when con-

stitutional error has been committed but “overwhelming

independent evidence of guilt” exists, the case must be

tested for prejuc

The argument here was a subtle, indirect attack on the

appellant’s failure to testify. Having found the remarks

improper, we wil] fo low the App roach of Lie i UP We He,

861 F.2d 972, 975 (6th Cir.1988}, to decide if the error

]

‘ llerrtnee fant cs 2s il 1.

IS harmless. ij following factors will be anaiyzea:

1) whether the language used was “manifestly in-

4 }99 . 4 ] one taaee fo 4 ‘ . ant

ended” as comment on the failure of the appellan

+ + sf, — eT , mh a ee ae ; eo ¢that +h .

o testify or was of such a character that the members

salnl San ntiaavnli«, ana " 7 wi ler? ‘ eo va

Would Nalurally and necessarily take it as such

2) whether the improper comments were isolated «

extensive;

3) whether evidence of guilt is overwhelming; and

1) whether curative instructions were given, and

when.

Applying those factors, we conclude the errors in argu-

ment were harmless. We do not find the trial counsel

“manifestly intended” to comment on the appellant’s

silence; we find another explanation for his remarks

equ ly lausible. See United States v. Rochan. 5638 F.2d

1946, 1249 (5th Cir.1977). In his zeal to deliver a com-

pelling argument, the trial counsel decided to delve deeply

into the “gray zone” of advocacy. He did not deliberately

cross the line to impermissible argument. Similarly, we do

not believe the members would “naturally and necessarily”

construe the argument as a reflection on the appellant’s

failure to testify. See United States v. Robinson, 651 F.2d

1188, 1197 (6th Cir.1981). After analyzing the context

of the comments and considering the likely effect of the

curative instructions, we are satisfied with the members’

ability to put the entire argument in a proper perspective.

lla

The argument was quite lengthy, and while improper

remarks were made several times, they do not account

for a large portion of the total argument presented. But

see Annotation at 14 A.L.R.3d 723 § 6. Further, counsel’s

ill-advised choice to defer his objection contributed to the

extent of improper argument.

This Court previously decided that the record over-

whelmingly establishes the appellant’s guilt 28 M.J. at

1032. Upon further review, we maintain that conclusion.

Since the appellant’s guilt was unequivocally proven, the

likelihood of harm from the improper argument is reduced.

See United States v. Hasting, 461 U.S. 499, 103 S.Ct.

1974, 76 L.Ed.2d 96 (1983); see generally Annotation,

Supre me Court’s Views as to What Courtroom Statements

Made by P “osecuting Attorney During Criminal Trial

Violate Dus Proce SS OY Constitute De nial of Fair Trial,

40 L.icd.2d 886, 895 (1974).

We have observed that “[p]rosecutorial improprieties

are not reversible error unless they are so gross as to

prejudice the accused, and the prejudice is not neutralized

by the trial judge.’ United States v. Sloan, 30 M.J. 741,

748 (A.F.C.M.R.1990). Here, the trial counsel’s argument

cluded some improper comments, but the military judge

tailored an instruction to insure that the members were

not unduly influenced. Considering the argument as a

whole and evaluating it in the light of the entire record,

we are Satisfied that the improprieties in the argument

were inconsequential.

On initial review, this Court did not find ape 1a]

error. We now reaffirm that determination. We are per-

suaded beyond a reasonable doubt that, even in the ab-

sence of the improper argument, the appellant would have

been convicted. See Chapman v. California, 386 U.S. a

23-26. 87 S.Ct. at 827-29: Fahy a. Connecticut, 875 U.S.

85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963).

The argument was error, but it was harmless beyond a

reasonable doub

12a

This decision must not be read as an indorsement of

the trial counsel’s technique. We explicitly find his com-

ments improper. He needlessly jeopardized an otherwise

sound conviction. See United States v. Hasting, 461 U.S.

at 512, 103 S.Ct. at 1982. It may well be, to paraphrase

Shakespeare, that the better part of advocacy is discretion.’

Having answered the specified questions of the Court

of Military Appeals, the record of trial is returned to

that Court in accordance with their instructions. 31 M.J.

at 280.

Senior Judge LEONARD and Judge JAMES concur.

APPENDIX C

U.S. COURT OF MILITARY APPEALS

No. 63,206

ACM 26528

UNITED STATES,

mt Appellee,

GERALD I. MOBLEY, Technical Sergeant,

U.S. Air Force,

Appellant.

Argued June 12, 1990.

Decided Sept. 27, 1990.

Opinion of the Court

COX, Judge:

Appellant was tried by a general court-martial with

members at Bergstrom Air Force Base, Texas, in August

and September 1987. Contrary to his pleas, he was found

guilty of attempted rape and premeditated murder, in

violation of Articles 80 and 118, Uniform Code of Military

Justice, 10 USC §§ 880 and 918, respectively. He was

sentenced to iife imprisonment, total forfeitures, reduction

to E-1, and a dishonorable discharge. The convening

authority approved the findings and sentence except for

the forfeitures, which he reduced to $300.00 per month

for 16 months. After modifying the findings and re-

assessing portions of the sentence, the Court of Military

Review affirmed.' 28 MJ 1024 (1989).

1 Appellant was convicted of attempted rape and premeditated

murder while attempting to commit rape. The Court of Militar

Review “modified [the] finding of premeditated murder” because

l4a

This Court granted review of the following issues:

WHETHER THE MILITARY JUDGE COMMIT-

TED PREJUDICIAL ERROR BY ADMITTING

EVIDENCE TAKEN FROM THE CRIME SCENE

WHICH THE DEFENSE WAS NEVER ABLE TO

EXAMINE OR REVIEW AS A RESULT OF THE

GOVERNMENT’S ARBITRARY AND UNREA-

SONABLE DECISION TO RELEASE THE CAR

AND ITS CONTENTS TO |THE VICTIM’S HUS-

BAND] ON 25 FEBRUARY 1987.

WHETHER THE SPECIFICATION UNDER

CHARGE I FAILS TO STATE AN OFFENSE

BECAUSE NO CERTAIN OVERT ACT WAS

ALLEGED.

, -

[ fT s ! I \ mu 4 T i th ‘ | st T I

vit! mbine leme! of n 1 murde) (

«> \ >

? ( ‘a 1] 1034 B l ) tant te aqismiss he

falan:. nNirder lang . har t} ‘ lor , h } nN rev) }

carte) murae ianguave when the evidenhce na rere eviewed

‘ 1 } ‘ soll . ] ee } 5 a . +? , .

and found to be factually and legally sufficient to support

d the murder spec fication “‘by

deleting the words, ‘and while attempting to perpetrate the offens«

ra} nda stat

Havit ! sessed those portions ol the sentence her thar

nfinement, we are convinced that the related punishment el

ments of dishonorable discharge, forfeiture of all pay -and

allowance s and reduction to alrman basi¢ would have bee n ad

judged even if the military judge had dismissed the felony

}

murder language after findings at trial. We conclude that no

mel of the appellant’s sentence is required in light o

Tior ’ YT) ]

1} i( Uy] appt 4

Based on our review of the record we have concluded

tnat tl i qd enten S W rra ted i } sf and that

is { INnauly t

. ’

\ 0} vl the of guilt BS i ne ind sentenct

re affirms

—_ .

i *

Lda

IT]

WHETHER THE CLOSING ARGUMENT OF

TRIAL COUNSEL WAS IMPROPER IN THAT

IT INVITED THE MEMBERS’ ATTENTION TO

THE FACT THAT APPELLANT DID NOT TES-

TIFY AND COMMENTED ON THE FAILURE

OF THE DEFENSE TO CALL VARIOUS WIT-

NESSES.

WHETHER THE MILITARY JUDGE COMMIT-

TED PLAIN ERROR BY FAILING TO INSTRUCT

THE MEMBERS THAT THEY WERE NOT FREE

TO DRAW ANY INFERENCES FROM THE

FACT THAT VARIOUS WITNESSES WERE NOT

CALLED TO TESTIFY BY THE DEFENSE.

Appellant was convicted of the premeditated murder

and attempted rape of Mrs. T, the dependent wife of an

Air Force enlisted man. The crime occurred on February

7, 1987, in the parking lot of the Noncommissioned Ofh-

cers’ Open Mess (NCO Club) at Bergstrom AFB. The

victim was employed by the club as a cashier and was

going home after completing her evening shift. When she

did not arrive home within a certain period of time, her

husband became worried and left their home to look

for her.

At approximately 11:30 p.m. on February 7, 1987, the

victim’s husband “found her lying’ unconscious and

bleeding with strangulation marks on her throat, “on the

floorboard of the front seat” of her car. The vehicle was

still where she had parked it when she arrived at work—

“in the last slot of the first row of the NCO Club parking

area.” She was taken to Brackenridge Hospital in Austin

where, despite heroic efforts to save her, she was pro-

nounced dead at 1200 hours on February 9, 1987. The

cause of death was “|al]sphyxia due to strangulation

(delayed death).”’

l6a

There were no eyewitnesses to the murder, and appel-

lant did not confess. The Government’s case consisted of

overwhelming circumstantial physical evidence linking

the homicide to him. The initial link in the chain was not

made until some 10 days after the murder, by Sergeant

Hesskew, a homicide investigator for the Austin, Texas,

Police Department. Upon closer examination of the physi-

cal evidence, Sergeant Hesskew found a receipt bearing

the name ‘Gerald Mobley.” Sergeant Hesskew instituted

a personnel check to determine if Mobley was stationed

at Bergstrom AFB and learned that he had been assigned

to the Nonecommissioned Officers’ (NCO) Academy at the

time of the murder, but had completed his temporary

assignment and reutrned to his permanent duty station

at George Air Force Base, California.

Sergeant Hesskew and Special Agent Brown of the Air

Force Office of Special Investigations (OSI) traveled to

George AFB, where they found appellant at his residence.

After being properly advised of his rights under Article

31, UCMJ, 10 USC § 831, Mobley denied any involvement

in the murder. The officers observed severai scratch marks

on his face and neck, which he claimed he received while

playing basketball at the NCO Academy. However, none

of the men with whom he had played ball were able to

corroborate his assertion. He could not explain how the

receipt bearing his name got into the victim’s car. One

of his academy classmates testified that appellant had met

the victim at the NCO Club and that he had expressed a

sexual interest in her on more than one occasion, using

caustic street language.

A search of appellant’s residence with the consent of

his wife revealed a leather jacket with blood smeared on

the sleeves. The blood was found to be the same type as

the victim’s. A shoe print taken from the window of the

victim’s car matched the sole of one of appellant’s shoes.

A saliva sample taken from appellant was found to be

consistent with the semen found on the victim’s dress and

17a

panties, in that both appellant and the murderer had body

fluids identified as “non-secretor.”” (Blood samples taken

from appellant were found to be consistent with blood

found spattered in the car.) The victim’s blood and that

of appellant were not of the same type. A pubic hair

sample taken from appellant matched pubic hair found in

the car. Finally, a piece of paper with a bloody finger-

print was found in the car. The fingerprint positively

matched appellant’s.

Issue I

The first granted issue concerns the evidence found in

the victim’s car. At the outset of the investigation, the

car was impounded by the Austin police department.

While the car was impounded, a forensic expert carefully

combed the car for evidence, and numerous photographs

were made of the vehicle. On February 25, 1987, without

any notice to appellant, the police released the automobile

to the victim’s husband per his request. No pretrial mo-

tions were made to produce the vehicle for defense in-

spection.

At trial, appellant moved in limine to exclude Sergeant

Hesskew’s testimony regarding any forensic evidence taken

from the car, particularly the blood spatterings, because

the vehicle was released before any defense investigation

of it could be completed.*?. The military judge denied the

2 The defense motion to suppress evidence from the victim's auto

mobile requested

the court to suppress certain evidence offered by the prosecutiot

to wit: Any and all evidence taken from the motor vehicle 11

which the victim, .. . was found on or about 7 February 1987

to include: one shoe print, pubic hairs, a receipt with th

name “Mobley” on it, semen, photographs of the vehicle and

blood stains and other evidence from the vehicle, and any othe.

evidence renioved from the vehicle, on the grounds the ace

has been denied his constitutional rights to

for de nial of due process for fatlure by the Governme?

preserve ¢ vide nee fo? analysis for t} é de f ¢ mse.

(Emphasis added. )

18a

motion.

> ] . > ’

1. The Ruling and Essential Findings on the Defenst

motion to suppress evidence irom tne victims automobli

are incorporated herein by referenc«

before it was returned to her husband] and the fact that

each and every spot of blood was not removed from the auto

does not provide a basis for excluding Sergeant Hesskew’s testi-

mony. As previousiy found in the referenced Findings, there

’ no indicat} >

is iit L1MUiCati

| > . ‘ y : is ‘ . 1] , ;

1) whatsoever that apparently favorable evidenc«

material to guilt or relevant to punishment has been withheld,

Oo!

lost, destroyed, overiooked or otherwise not disclosed to the

Accused in violation of his constitutionally guaranteed access

to evidence. As previously found, while not all the blood stains

were removed from the car, representative samples from the

areas of the car containing such blood stains were removed.

The results of the testing of blood stains are available to the

Accused.

8. There is no indication whatsoever that the action of the

Austin Police Department in returning the auto to its owner

after an exhaustive crime scene examination of the interior

was motivated by an intention to circumvent disclosure re-

quirements. It was, rather, done in good faith and in accord

ance with the department’s standard practice.

In pertinent part, “The Ruling and Essential Findings .. . on the

Defense motion to suppress evidence from victim’s automobile” con-

tains the following findings by the military judge:

. * . '

4. The victim’s husband . . . was the initial suspect but was

soon determined not to be a suspect. ... Accused because the

suspect and was interviewed on 17 February 1987. He was

ordered into pretrial confinement on 24 February. On 25 Feb-

ruary 1987, Captain David Nix, the lead defense counsel, was

detailed to represent the Accused. According to Captain Nix,

the car was released to ... [the victim’s husband] that same

day .. . while he was involved in a trial and thus he had no

chance to examine it. None of the defense counsels have ex

amined the car, nor apparently have requested to do so, although

the Defense Investigator has had access to the car. The cat

was released. . . to its owner. ... There is no evidence that

any defense counsel nor any other person ever requested notifi-

cation before the release of the auto.

5. The release of the vehicle was done in accordance with

the standard procedures of the Austin Police Department. Set.

The Court of Military Review, concluding that the

military judge did not err in his ruling because the ve-

hicle was a “crime scene,” stated:

We know of no rule based upon constitutional, statu-

tory or case law which requires police authorities to

preserve a crime scene until appropriate defense

representatives have had the opportunity to examine

it. Such a rule would be impractical in the extreme,

particularly in a case in which theh eventual ac-

cused at trial is not identified as a suspect until a

considerable per xl of time has passed following dis-

covery of the crime

‘)

g, however, we do not indulge

semantics. Although the vehicle most certainly was

crime scene” as described by the court, it also con-

ined the type of evidence to which an accused should

ve reasonable access for examination. Art. 46, UCMJ,

ry ,

TQ S . hor — a a4 77 2991170020 1 SAR AG :

USC § 846. There were at least five crucial pieces of

Hesskew : | was aware of no requirement to advise any

;

other persons of the return of a vehicle under such circum-

stances. No such requirements, as they might exist in any

operating procedures, regulations, or statutes were brought to

the attention of the court

6. There is no indication whatsoever that any evidence in the

car, either inculpatory or exculpatory, material or otherwise,

was lost, overlooked, or not removed, notwithstanding that each

and every dro] of blood was not removed. ... There is no

indication that any evidence was either selectively removed or

left behind to implicate the Accused as he did not become a

spect until the receipt was unfolded and read, approximately

one week after the car had been processed for 1 ivestigation.

There is no indication that the car, a crime scene, was processed

and inve stigated in any manner other than anormal and routine

ai nnel All evidaece remo ed from the ca has heer rese! ed

nd is available to thy defense for nspection.

7 No lolation of any Constitutional right of the

Accused occurred as a consequence of the return of the

vehicle to its owner

SSS sss sss ssn i

*) P

aVa

tained from the forensic inspection of the

vehicle, including: two varieties of ‘“‘blood spatters,” SE

United Stat . Mustafa, 22 MJ 165 (CMA), cert.

denied, 479 U.S. 9538, 107 S.Ct. 444, 98 L.Ed.2d 392

(1986'; human hair samples; semen samples; and a shoe-

sole print found on the car window. In turn, expert testi-

mony was offered by the Government concerning each of

these crucial pieces of evidence. Indeed, the vehicle itself

iad evidentiary value. For example, the location of

yrints and blood spatters gave forensic clues as to how

he crime was committed.

Notwithstanding the obvious need that anyone involved

in the investigation of this homicide have access to this

vehicle, no new “rules of law” need be created to man-

date that result or to authorize the police to release a

vehicle—or any other evidence, Sufficient tools to resolve

the case are already available.

Importantly, at the time the vehicle was released, ap-

pellant had been arrested and counsel had been “de-

tailed’? to represent him. In other words, there were no

compelling circumstances which dictated the immediate

release of the vehicle to the victim’s husband without at

least vg appellant and his representatives and giv-

ing them a reasonable chance to inspect the automobile.

CT. United por vu. Garries, 22 MJ 288 (CMA), cert

denied, 479 U.S. 985, 107 S.Ct. 575, 93 L.Ed.2d 578

(1986). However, despite the fairness and equity of

permitting the defense to have the opportunity to in-

spect the vehicle, we acknowledge that appellant enjoys

no constitutional right to such consideration. Arizona v.

Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d

281 (1988), for these reasons:

First, “unless a criminal defendant can show bad faith

on the part of the police, failure to preserve potentially

useful evidence lone not constitute a denial of due process

of law.” J/d. at 58, 109 S.Ct. at 337. This appellant has

made no showing of ‘“‘bad faith.”

Second, the defense made no showing that the police

} ss > sal y ]

Suppressed evidence Tavorap|

e to an aceused” which the

have known was “material

either to guilt or to punishment.” Brady v. Maryland,

373 U.S. 88, 87, 83 S.Ct. 1194, 1197. 10 L.Ed.2d 215

Government knew or should

(1963). Our review of the record suggests no reason-

able theory upon which we could conclude that “evidence

favorable to an accused” was destroyed because the car

Was returned to

the victim’s husband.

Third, as pointed out by the Court of Military Re-

view, several other factors mitigate against excluding the

evidence:

The police sergeant who made certain deductions

based upon his examination of blood spatters pat-

terns was available for cross-examination at. trial.

United States v. Garries, 22 MJ [288] at 292 ICMA

1986]. A number of photographs depicting what the

officer had observed were introduced as exhibits at

trial. United States v». Kern, 22 MJ [49]. at 52

(CMA 1986) |. The physical evidence actually re-

moved from the vehicle and the forensic tests con-

ducted thereon were available to defense representa-

tives during the pretrial and trial process. RCM

703(f)(2) [, Manual for Courts-Martial. United

States, 1984].

28 MJ at 1028.

In United States Uv. Garries 22 MJ al 298. we

con-

cluded that ‘“‘|ul]nder Article 46, the defense is entitled

parently exculpatory.” Thus, whether this vehicle js

characterized as a “crime scene” or as evidence qua

evidence, Mobley or his representatives should have been

to equal access to all evidence, whether or not it is ap-

afforded a reasonable opportunity to Inspect the vehicle

before it was released to the victim’s husband. To con-

stitute reversible error, however, an accused must suffer

some prejudice as a result of the Government’s improper

conduct. Art. 59(a), UCMJ, 10 USC § 859(a).

22%

We find no prejudice in this record. Furthermore, the

vehicle was returned to the victim’s husband by Austin

city police officials, not by the military police. It is doubt-

ful that those officials would be cognizant of the high

standards created by Article 46 of the Uniform Code of

Military Justice, and we detect no bad faith on their

part in releasing the car as they did. Arizona v. Young-

blood, supra.

Issue II

Appellant claims for the first time on appeal that the

specification which alleges that the accused “did, ... on

or about 7 February 1987, attempt to rape” the victim

failed to state an offense because it does not allege an

Overt act as part of the attempt. At trial, defense coun-

sel did not allege that the specification was defective, but

only requested a bill of particulars as to what the Gov-

ernment would prove was the overt act in committing the

attempt. Trial counsel merely responded with a list of

witnesses and evidence which the Government intended

to introduce to prove the attempted rape. The military

judge ruled that the information provided to defense

counsel adequately informed appellant of what he had

to defend against, so he denied appellant’s request for a

formal bill of particulars.

We reject appellant’s claim that the specification fails

to state an offense. Military case law has long accepted

the pleading of attempts under Article 80, UCMJ, 10

USC § 880, without alleging the overt act. United States

v. Marshall, 18 USCMA 426, 430-31, 40 CMR 188, 142-

43 (1969). Nothing in the Manual for Courts-Martial

requires—either implicitly or expressly—that the overt

act must be pleaded as part of the specificaiton in ar

attempt. But cf. Art. 81 (conspiracy), UCMJ, 10 US¢

§ 881. Compare pars. 4f with para. 5f, Part IV, Manual,

Although we agree that it may have been better prac-

tice to provide appellant with a formal bill of particu-

23a

lars, we are satisfied that he received the functional

equivalent. The Discussion following RCM 906(b) (6)

states:

The purposes of a bill of particulars are to in-

form the accused of the nature of the charge with

sufficient precision to enable the accused to prepare

for trial, to avoid or minimize the danger of surprise

at the time of trial . . . when the specification itself

is too vague and indefinite for such purposes.

A bill of particulars should not be used to con-

duct discovery of the Government’s theory of a case,

to force detailed disclosure of acts underlying a

charge, or to restrict the Government’s proof at

trial.

A bill of particulars cannot be used to repair a

specification which is otherwise not legally sufficient.

As previously noted, trial counsel responded to the

request by furnishing appellant with a complete list of

Witnesses and the evidence the Government intended to

introduce in the case. This information included proof

that the victim’s pantyhose and underwear were found

pulled down from her waist. In addition, there was evi-

dence of a struggle, and semen and blood consistent with

appellant’s were found in the car. Moreover, there was

a statement by an acquaintance of appellant who had

heard him say that he would like to sleep with the vic-

tim. Appellant covld not have been in doubt as to what

overt acts the Government intended to prove. We are

satisfied that the judge’s failure to order the bill of

particulars did not amount to “an error of law

ithat] materially prejudiced the substantial rights of the

accused.” Art. 59(a), UCMJ, 10 USC § 859(a).

Issues III & IV

Appellant also claims reversible error because trial]

counsel’s final argument impermissibly commented on

appellant’s right not to testify or to call witnesses in his

—s

24a

behalf, and because the military judge failed to give

adequate curative instructions.*

It is black letter |

comment directly, indirectly, or by innuendo, on the fact

that an accused did not testify in his defense. Griff

California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d

hen honed *

aw that a trial counsel may not

106 (1965). Furthermore, he is not permitted to com-

ment on an accused’s failure to produce witnesses in his

behalf. United States v. S roape, 21 MJ 414 (CMA

1986). If such comments are made, the record must then

be examined for prejudice to determine whether the error

was harmless. Chapman v. California, 386 U.S. 18

S.Ct. 824, 17 L.Ed.2d 705 (1967).

With regard to the assertion that the military judge

did not provide a curative instruction advising the mem-

bers that appellant was not obligated to present witnesses

in his behalf, we are convinced that trial counsel’s com-

ments were sufficiently defused by the military judge

upon defense counsel’s immediate objection.° Apparently,

‘During his instructions of the findings, the military judge ad

ed the members

T he ‘i¢ iN¢é } } rf f ré } ant f renga ) ent Y¢ / /

[ if hiieé } dive S¢ f the CC ed 7 rhe cr

+} t he t testify j née R ) ] ‘ , Th foct ft ;

U! ecused has not testified in otner matter Ir t ft

sre rarded h\ vou And, ) thie 4 ard, ou heard the ;

( /?} gel du) n | the COMUTSE OT his argume nt oT ths evide nce, ‘7 » J

certain rhetorical qie stions wh ch appeared to he directed to

) ? ’ 17 ’ ° ,

ams: the CCHSETA é aqeant Mol ii ] +} nic r 7S ooviouws to

that these rere a rhetor eal forn ft gue tie?

hetor ( rqument b T | ao Tion \ ] r }

the accused has an absolute right to remain silent, and you

not draw any inference adverse to the accused from the fact

tnat he did not testify as a witness.

Defens counsel immediate [ objected stating that t was

‘clearly improper argument,” although he did not state why it w

rope? The ilitarv judge istained th ot ct I Vari

P counsel ¢ << 3 1 ? ling questions ske I q

ma t} T he ( uld I y argue from the e' ide nce presente d at t) al

Defense counsel did not ask for a curative instruction

secielai

Or -«

ava

counsel was satisfied with the military judge’s admoni-

ion to trial counsel and saw no need for any additional

instructions. Absent plain error, that issue was waived.

United States v. Fisher, 21 MJ 327 (CMA 1986); RCM

920(f).

Trial counsel’s comments were described by the mili-

tary judge as “rhetorical.” ° We find ourselves at a con-

siderable disadvantage to judge this argument because

obviously we were not there to observe his demeanor.

The cold, written record does not give us a flavor of his

‘ ,

tone of voice, his voice inflections, his pauses, or the

nuances of his language and its form of presentation.

We do know, however, that no timely, contemporaneous

objection was made to the presentation.

Nevertheless, the record and the words suggest an

image of the accused silently sitting in the courtroom,

being bombarded with questions he could not answer, and

then listening to answers he could not contest. The prac-

}

a mute defendant. He would ask the rhetorical question,

then imply the answer he hoped to elicit from appellant.

We do not hold that us of the theatrical or oratorical

device, the rhetorical question, is per se offensive. In

many instances, it may well be a very effective method

for conveying ideas. If defense counsel had made a con-

temporaneous objection, we would have expected the mili-

tary judge to admonish trial counsel to change his strat-

egy.

However, defense counsel represented at trial that he

did not object to unfair comments by trial counsel be-

cause he was bound not to do so by “AFR 111-1.”7 Ap-

Excerpts from the record demonstrating the “rhetorical” tech-

nique used by trial counsel during closing argument are contained

in the appendix

- . “es ’ a . | annaludad _

‘ Defense counsel walted untill trial counsel conciuded Nis argu-

zZo0a

parently he was referring to Air Force Regulation 111-1,

the Military Justice Guide for the Air Force, which was

not discussed in the briefs or oral arguments presented

by appellant counsel for either the defense or the Govern-

ment. Our review of the guide has uncovered no such

rule of court, local or otherwise, binding a defense coun-

to allow a prosecutor to finish befor objecting to im-

proper argument. See also RCM 919(c). Because the

issue has not even been raised on appeal, we will assume

that appellant no longer claims that AFR 111-1 had a

chilling effect upon defense counsel’s ability to object to

unfair argument.

If a defense counsel is truly concerned that his client

is being treated unfairly at trial, that is not the time

At this point, the defense requests this court grant a mistrial

based upon improper argument. J did not object during Captain

V irph y's argument, heerause of course, the regulation wundei

thich we live, AFR 111-1, provides that you should not object

dur no argume nt. And if mi obje ction Mere not susta ned, ]

d not want to be n the pos tion Of atten ting ton de } 12] Cap-

tain Murphy's argument in any way. ... What we had here,

vere repeated assertions, repeatedly calling attention to the

act that Sergeant Mobley didn’t testify by his repeated rhetori-

cal questions to him. His conduct was improper, we therefore

now state our objection to trial counsel’s closing argument, a!

eaiitt

ve for a mistrial based upon that argument

. : , ’ ile Tr : aL ‘mae

Emphasis added.) The military judge denied the motion, finding,

a ali

that $ x40e tident th nat ‘nn af rhetorical 7 +; ) . )

Was evident tne Da tern of rhetorical questions were

just that, rhetorical in nature onl al obvious! inder the

— oe not mant which invited attentios

Ircumstance O iS Ke manner wnicn 1 e¢ { O

: Z , :

the fact that the accused did not testif in his own behalf

in this trial

During rebuttal arecument. trial] unsel made the following com

i il itl} rebuttal argumen . trial COunNnS* rae it rollowing com

But, you remember promises you've been made throughout the

course of this trial. If you for instance made.a promise during

the voir dire section of this trial that vou were going to hear

a myriad or whole host of witnesses come in here and talk to

you about a man’s exemplary life, his family life, his military

for him to worry that he might “derail” the prosecutor’s

presentation of the case. Rather, it is his obligation, then

and there, to “derail” trial counsel’s impermissible argu-

ment by objecting. It is the military judge’s task to

decide if the objection somehow unfairly derails a prose-

cutor’s argument. Although the issue was raised before

the Court of Military Review as to whether trial coun-

sel’s argument amounted to unfair comment on appel-

lant’s failure to testify, that court did not specifically

address it.

While we are satisfied that appellant is entitled to no

relief with regard to Issue I, II, and IV, we are not so

comfortable with Issue III. We believe the court below

should have the opportunity to deal with that issue before

y awn M

we consider it.

The decision of the United States Air Force Court of

Military Review is set aside. The record of trial is

returned to the Judge Advocate General of the Air Force

for submission to that court for specific resolution of the

following questions:

1. Did trial counsel’s argument constitute unfair

comment on, or otherwise unfairly exploit, appel-

lant’s failure to testify in his own behalf? -

2. Was defense counsel, in fact, precluded from

objecting to trial counsel’s argument by AFR 111-1,

any local rule of practice, Air Force policy or deci-

sion of the Air Force Court of Military Review?

3. If trial counsel’s argument was error, did the

military judge’s instructions cure any harm result-

ing therefrom?

4. If trial counsel’s argument was error, was it

harmless beyond a reasonable doubt?

After action on these questions has been taken, the

record of trial shall be returned directly to this Court.

Chief Judge EVERETT concurs.

DR.

—

APPENDIX

) j =e 7* 7.9

Bi, iS} j iPse ts sSeraean}t Mol Ci enw dian f {0U

j ; ‘ . )

Ck \ {) if) ang cas) anu more CHECKS:

see 9 . , ryt 7sX

} dnt ne more mon No. The NCO Acad-

ser | ‘ } . . . + . reall ] y . , ; Lj] oJ

emy lias PC 10} Ano he) I lil We@@K, ‘Ni ramedadyi } ODT¢ u. sie

‘ : ‘ ‘

. ; . , : . : 1

/ , on ’ “4 Ot j Ch Chey Oil fide Bik. €U€e-

*) T’ > ? 4 i, 7

The pid ed f lj eV mm” Scared ( go hac} to the

Ve {) / ‘\ pie pid > gn re LOT -f jou ¢ WV} j

r ] ° ; .

nad - )*))? cored oT) 0?) } { (aice, {Ou} nrterest

j j : TT’ ,

( Vi (3 4 ( nat { Qi aid. adda

; ij fj ; \ ‘sige i*¢] j rj Tech) ‘el fi \é ys

; l7 ;

v/ / /

There’s no way to make death pretty. There’s just no

s left swimming in her own gore. None. But, Ser

Mobley is now off down the road, he’s made a commit-

ment, he’s decided that he'll take what Cynthia wouldn’t

give him, he’s decided to shut her up permanently, and

now he’s inside the ear. Now, here Sergeant Mobley, is

‘

where I can’t figure out what vou did next. She’s on the

. 7

seat, unconscious, semi-conscious. . . Have you ever

> j . ] 4 y f ’ 7 y Ti ° tT }

) Yn per ) } hie aotre fiaive TEGXL ( ?) Gotte)

» 4 , ‘7 . , ) ,

Cried ar } (ji fie) WX AIT hyaod as OT ting LOSE ° Hare Ou

. . . ' > r » @ se .

; ;

e) Tan j pie rempi W , Cyuntnia did o fhat

Ls Y F P " , " ,7 7: ,

jj} | (7 f j) yg as yped Cie Ss Hieedindg, and jen-

. ; . ’

hey } ; S Jie & Starting fo i ( ‘ CTY foman ss ndenti-

; i] ; ] ’ |

veere ; “yid r at QO: Dott 7 sid Nile re (Jar) . CVOUDdH

a” " ,

\ / f (sid? \ MPa DPvVe wii SN fhe pry

+ ’ “

Cri / ( } } mare / rie C7 OF hi¢ roi) 0

I pe pre

* * * » x

Well now, Sergeant Mobley, by this time, you’re well down

* ' ;

the road, and ve realize that vou're not going to be

able to do it quite so easily. So, you reach out for the

osest weapon. and vou draw it across her throat. Mavbe

that wi shut her up. But, it doesn’t. She’s not just

manually strangled, there is a crushing strangulation.

7 .

You kno ‘’ some thing PIS, : Nv roe ant Mobli y, what ] can’t

SRERLE out 1s. how that shoe print. got 07) the window 2

Was it there when you were trying to mount her, or was

f thy "4 why in ‘py é thindg I erade LO Cr ish he -

neck I dont | We'll 3 er know. That’s one of

those tha) S that’s LA he a in ponds rable

Wha / cant fir re t at thas point, wT rgeant Mobl Y,

j d "f f fit } ad he r thre Tc. Shi was

LPCONNS ) TLE yi (ol hhé np r7eS ¢ fi. fo got he r panty

; ‘ ‘

hose dow ty mid-_thial lV’ 1 didi ¢ iO ra pe he ré Was

heca PS hie SCTaT hi > ri Was i7 heca iN¢ she

i; ate d ()) pers: | f la ff heca N¢ the hlood yh he r

rp othe d ot her qaqqana on hae y omen hlood

ed j / ¢ fF / di } 4 ] ) . ) < th * Wie othe r Vreaso)i

Ooi gf lel) 4 (eT thy ah (Poole é / do r. now. The point

of the matter, members of the court. is. we don’t have to

prove why he didn’t get the job done. It can be any of

hose re iSons., He ot 2 that car intending to and at-

rePrMDT INE, () Pal poe er. lind vhy ; pasn't finished, 40

¥ ,

So, what ‘e don’t kin “m another one of those unanswered

1estio} that frankly doesn't } ed r¢ he aAnSWeETE d. 1s

‘} / he didn't rape dre i. vhy did he O} lu ¢ aculate 0) thre

floorboard and on her dress? But, by this time, Sergeant

Mobley, things have indeed gone a long, lot further, and

you’re well down the road, because Cynthia is now

truggling against the strap that binds her. It is a

desperate struggle, it is one that breaks her fingernails

in trying to fend you of it basically, Sergeant Mobley,

by this time, you had her, she was doomed, because by

the time you had finished grinding your fist into her

throat, Sergeant Mobley, she could never again breathe,

she could never again breathe on her own. Now. Ser-

geant Mobley, let’s give you the benefit of the doubt.

Let’s say for instance, that you really didn’t mean to kill

ler, just to shut her up for a while. The question that

80a

} - ° ¢ ‘Y )

naturally arises is that in the name of God were you

thinking that. you would be doing to that woman?

But, Sergeant Mobley, what was going through your

mind in those one to two to eight minutes? What could

you have been thinking of? Were you thinking of your

career sé W ere you thinking of the lie you'd tell if you

ever got caught? Or, did you just not care:

* * * x

Well, Sergeant Mobley, what doesn’t make sense in all

that is. if she avas Te thing you do what you wanted to do,

vhy did you go back (p north and kill her Why did you

go back up her body and put your fingers on that wom-

an’s throat, and use your upper body strength to crush

the life out of her? lf she’s conse nting to all these things,

there’s no need to kill her.

(Emphasis added.} On rebuttal, trial counsel again asked

a “rhetorical” questio1

If you were attempted [sic] to buy off on the foolish-

ness that the accused was discovered, then ask your-

, why are you sticking

around ? Why don’t you get out of there ? Why are

selves, Se rgeant Mobl y

you staying around to be clawed? Why are you

staying around to get hlood on your jacket? Why

don’t é

portant question, why didn’t you tell us about it

jou leave? And, ask yourselves the most im-

lati ré

(Emphasis added. )

SULLIVAN, Judge (concurring in the result) :

I coneur in the result, simply stating that I find no

prejudicial error in this record. If trial counsel’s argu-

ment was error, my view is that it would be -harmless

under Article 59(a), Uniform Code of Military Justice,

10 USC § 859(a). Nevertheless, I am not opposed to my

Brother Judge Cox’s remand to seek the opinion of the

Court of Military Review on this point.

eee at A A LE CL NE EC CC A EE TE TL

A A NR

sla

APPENDIX D

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 26528

UNITED STATES

Technical Sergeant GERALD I. MOBLEY,

FR 565-86-1085, United States Air Force

Sentence Adjudged 2 Sept. 1988

Decided 18 July 1989

Before LEWIS, BLOMMERS and KASTL, Appellate

Military Judges.

DECISION

LEWIS, Senior Judge:

The appellant pleaded not guilty to attempted rape and

premeditated murder committed while attempting to

perpetrate the offense of rape. Both murder theories

(premeditated and felony murder) were alleged in one

specification. He was found guilty following a trial be-

fore members. These findings, having been announced as

unanimous for murder, subjected the appellant to a pos-

sible capital sentence. R.C.M. 1004(a) (2). However, he

was sentenced by the members to the mandatory mini-

mum punishment of life imprisonment. Article 118,

UCMJ, 10 U.S.C. § 918; MCM, Part IV, paragraph 43e

(1) (1984). Other punishment elements were a dis-

honorable discharge, forfeiture of all pay and allowances

and reduction to airman basic. The general court-martial

32a

convening penne epee ved the sentence with the ex-

ception of total forfeitures. The forfeiture was reduced

to $300.00 per meth for 16 months.

The operative facts, as briefly summarized, reflect that

the victim, identified herein as C.T., was the 25 year old

dependent wife of an airman first class. She was em-

ployed as a cashier at the Noncommissioned Officers’ Open

Mess, Bergstrom Air Force Base, Texas. Late on the

evening of 7 February 1987, she was discovered uncon-

scious, the apparent victim of a beating, sexual assault

and strangulation, in the front section of her automobile

which was parked in the Open Mess lot. Her body

transported to the base medical facility and, subsequently,

to a larger hospital in Austin, the adjacent civilian com-

munity. There, C.T. was examined and determined to

be “brain dead.” The next day, following consultation

with her husband and father, medical personne! termi-

nated life support efforts.

A receipt found in the front seat of the automobile

contained the appellant’s name. While this item was

removed from the vehicle the day after the incident by

a civilian police detective, it was apparently overlooked

for a period of time as other items were being examined.

When the significance of the receipt was recognized,

agents of the Office of Special Investigations, working in

cooperation with Austin City Police detectives, targeted

the appellant as a subject of their investigative efforts.

poe appellant was assigned to George Air Force Base

‘alifornia, but he had been attending a Noncommissioned

Officers Academy course at Bergstrom when the offense

occurred. The appellant was linked to the scene of the

offense by circumstantial evidence including the afore-

mentioned receipt, forensic analyses of a seminal fluid

stain in the automobile and of pubic hair samples lo-

cated nearby, the typing and comparison of blood sar=ple

found at the crime scene and on clothing snr ig to the

appellant, the dusty imprint on the car window of the

99.

ood

sole of a shoe similar in design to shoes owned by the

appellant, and expert identification of a bloody palm

print on a sheet of paper in the deceased’s car as match-

ing a known print of the appellant.

We conclude that the evidence produced at trial is

legally sufficient to support the findings of guilty returned

by the members. Based on our review of the record, we

are convinced of the appellant’s guilt beyond a reason-

able doubt. The appellant has assigned eight errors, sev-

eral of which have been orally argued by counsel. Three

of the assigned errors merit discussion. We affirm with

modification of the findings for reasons set forth herein.

Re leas< of A utomobile to Victim's Husband

Appellate defense counsel argue that the appellant’s

right to an equal opportunity to examine evidence, as

provided by the Sixth Amendment and Article 46, UCM,

10 U.S.C. § 846, was violated when the automobile in

which the victim’s body was found was released by Austin

police to the victim’s husband without notice to the de-

fense. The record discloses that the civilian police authori-

ties and agents of the Air Force Office of Special Investi-

gations were coordinating their investigative efforts when

custody of the vehicle was relinquished. At trial, the

defense moved to suppress all items of evidence obtained

from the vehicle as well as testimony based on visual

inspections of the vehicle. The motion was denied. This

was unquestionably a key issue at trial, inasmuch as the

bulk of incriminating evidence against the appellant was

located in the vehicle or was derived from evidence located

therein.

The essential findings of fact by the military judge are

supported by the evidence presented on the motion.

Briefly stated, the vehicle was towed from the parking lot

adjacent to the Noncommissioned Officers’ Open Mess to

a police impoundment lot off base. The following day, 8

February 1987, the interior of the vehicle was examined

in great detail, and numerous items of evidentiary value

were removed and catalogued. Additionally, various blood

splatter patterns were closely scrutinized and measured

by a police detective having a good deal of expertise

this type of examination. During the earliest stage of the

investigative process the victim’s husband was viewed as

a possible suspect. However, any suspicion directed toward

him quickly dissipated. A little over a week after the

vehicle was taken into police custody, the appellant’s name

surfaced because of the previously mentioned receipt found

in the vehicle. Investigators interrogated him at George

Air Force Base on 17 February. The appellant became

the subject of the investigative effort at this point. He

was placed in pretrial confinement at Bergstrom Air Force

Base on 24 February and was formally charged on 25

February. The vehicle was released by Austin police

authorities to the victim’s spouse the same day.

While the record is not entirely clear on the matter of

the appellant’s representation by counsel, it appears that

he consulted military counsel at some point following the

17 February interview. Defense counsel was not detailed

until 25 February, e the vehicle was released. The

he dat

ich

° . oe 7} ] She . 17 rs vy) «

record cieariy establis es lat no request Was made on the

appellant’s behalf for an opportunity to inspect the vehi-

] + > ~ +> .* 4 a :+ > ‘ ] . ea | ‘ . > ‘ > . os ‘

cle. On the other hand, it is equally clear that Austin

: ”

police officials made no attempt to notify the appellant or

a representative on his behalf of their intent to release

the vehicle to the husband. Testimony presented in opposi-

tion to the motion indicated that there was no requirement

nor standard procedure that would have required the

Austin police to provide such notice.

W 11} t mNnoavea iy ‘ lpatai va ’ yry* 7 ay) t +]

€ Snali not engage In a detalied comparlso! 0] ne

circumstances of this case with the leading precedents

i re

discussing the Government’s obligation to provide evi-

lence, whether apparently exculpatory or not, to the

lefense. Nee Arizona »?. Yo mablood. - _ U.S. _ : 10%

S.Ct. 333, 102 L.Ed.2d 281 (1988); California v. Trom-

spouse,

We questi

evidence

30a

suffered no discernible prejudice from this ruling in any

event. The police sergeant who made certain deductions

based upon his examination of blood spatter patterns was

available for cross-examination at trial. United States v.

Garries, 22 M.J. at 292. A number of photographs de-

picting what the officer had observed were introduced

exhibits at trial. United States v. Kern, 22 M.J. at 52.

The physical evidence actually removed from the vehicle

and the forensic tests conducted thereon were available

to defense representativs during the pretrial and trial

process. See generally R.C.M. 703(f£) (2). As previously

noted, any benefit that might have resulted from a defense

examination of the vehicle while it was in police custody

is purely speculative.

Introd icfion of Graphic Photograpl s of thre Victim

We now examine an issue that frequently arises when

a victim has been killed or suffered serious bodily injury

allegedly as a result of an accused’s criminal acts. In

prosecuting its case the Government normally has a right

to present evidence to the triers of fact of the harm which

an accused has caused. As in the case before us, such

vidence is often relevant to a material issue, e.g., that the

victim, C.T., was killed as the result of intentional violence

inflicted against her person. The evidence is often pre-

sented, at least in part, in the form of photographs of the

injured or deceased person. The military judge in such

instance has the task of balancing the extent to which suc!

evidence will assist the triers of fact against the tendency

of the evidence unduly to inflame the passions of the triers

of fact. Mil.R.Evid. 403.

Case law has historically favored admissibility of photo-

graphic evidence, even when its gruesome a graphic

nature might upset the sensibilities of jurors. See the

itations gathered at Annotations, 73 AL .R.2d

769 and 53 A.L.R.2d 1102, 1103-1105. The Court of Muili-

ils has accorded trial judges broad discretion

37a

1 admitting such ey idence where

the record supports find-

ings that the photographs were offered for a egiti imate

evidentiary purpose and that their probative value out-

Weighs the risk of unfair prejudice to the accused. United

States v. Yanke, 23 M.J. 144, 145 (C.M.A.1987) - United

States v. White, 23 M.J. 84. 39 (C.M.A.1986) ; United

States v. Matthews. 16 M.J. 354, 363 (C.M. A.1983) :

United States v. Harris, ¢ > U.S.C .M.A. 736, 21 C.M. R. 58,

66-67 (1956): United States v. Bartholomew, 1 U.S.C M.A.

307, 3 C.M.LR. 41, 48 (1952), and eases cited therein. On

an infrequent occasion. an appellate court will hold that

a military judge abused his discretion in allowing such

evidence to be placed before the triers of fact. See United

States Vr. Cole man, 36 C.M.R. 574 | A.B. R.1965 >), pe P

denied, 36 C.M.R. 54] (1966), where the Army Board of

Review held that the military judge abused his discretion

in admitting four prosecution photographs of the victim’s

corpse portrayed with her intestines streaming from the

vaginal orifice. The Board concluded that this evidence

had a limited probative value in light of other evidence

Which adequately portrayed the viciousness of the assault

which led to the victim’s de: ith.

In the case at hand the prosecution offered a number

of photographs of the deceased during one of the early

Article 39(a). UCMJ. proceedings. The military judge

admitted most of the proffered photographs. However, in

response to Phe eb mieriaal, he excluded: (a) two

autopsy photographs showing right and left side views of

the victim’s skull with the su irgically reflected seal Ip pulled

forw: wi over her face; and (b) a photograph of the

surgically exposed neck cavity. These photographs had

been offered to depict certain internal injuries she had

allegedly received at the hands of the appellant, i.e.. deep

bruises from blows to the head in the first instance and

major hemorrhaging fron strangulation in the second

instance.

}

he rejected photographs were proffered again by the

prosecution at a later point 1n the trial.

ooa

‘aphs of the victim's exposed skull were grouped into one

‘xhibit along with four drawings depicting clusters of

yruises, or contusions, to the victim’s head. The photo-

graph of the victim’s neck cavity was displayed along

with several other photographs including two of C.T.’s

excised hyoid bone' which, according to expert testi-

mony, was fractured on the left side. In making his

initial ruling on the photographs, the military judge had

considered a stipulation of expected testimony of a pros-

pective prosecution witness, a forensic pathologist, to the

effect that the photographs were necessary to assist in

the members’ understanding of his testimony. At the

later point in the trial, the witness was available and

testified in the Article 39(a) session concerning the sig-

nificance of the preffered photographs. The military

judge on this occasion admitted the exhibits over continu-

ing defense objection. We must now consider whether he

abused his discretion in doing so.

The military judge, in his ruling admitting the photo-

graphic exhibits, found they were relevant both on the

merits, as proof that the victim died by strangulation,

and in relation to one of the capital sentencing aggrava-

tion factors upon which the prosecution relied, i.e., that

“the murder was preceded by the intentional infliction of

substantial physical harm or prolonged, substantia! mental

or physical pain and suffering to the victim.” R.C.M.

1004(¢)(7) (1). In admitting the exhibits the military

judge asked that the witness explain in his subsequent

testimony before the triers of fact “that the dissections

involved to produce those photos were not caused by the

accused, but were done by a surgeon on post mortem

examination.” This explanation was subsequently pro-

The hyoid is located at the base of the tongu:

- The record reflects that the prosecution had nrovided the requl-

site notic ; set forth in R.C.M. 1004(b)(1 See also R.C.M

1004(b)(5). which raises issues that we need not address in this

A A me

39a

vided to the members in compliance with the military

judge’s request. This was a sound precaution. See the

description of the autopsy photographs found to have been

erroneously admitted in People v. Burns. 109 Cal.App.2d

924, 241 P.2d 308, 318-319 (1952).

We first address the exhibit containing the photograph

of the opened neck cavity. As previously noted, the mili-

tary judge based his ruling, in part, on the relevance of

the evidence to assist the Government to sustain its bur-

den of proof on the merits. This photograph portrayed

What the expert witness characterized as the greatest

degree of internal hemorrhaging he had viewed in the

course of approximately 1,500 autopsies. The photo-

graphic evidence of the hemorrhaging was relevant to

demonstrate the likely degree of force utilized in strangling

the victim. The witness was able to provide opinions,

through the evidence along with other evidence of external

abrasions to the victim’s neck. as to the possible means

by which the strangulation was accomplished.

We are satisfied that this particular exhibit was rele-

vant to the issues of intent and premeditation. Whether

it should have been placed before the triers of fact follow-

ing a Mil.R.Evid. 403 balancing test is a matter about

which reasonable pe ple might differ. As appellate defense

counsel correctly argue, the photograph in question would

have been more helpful to the trier of fact if it had been

accompanied by a photograph or other portrayal of the

“normal” neck cavity of a cadaver. However, we will]

not predicate error on the fact that the prosecution might

have organized the challenged exhibit in a manner to be

of more assistance to the triers of fact than it was. We

find that the military judge did not abuse his discretion

in admitting the photograph of C.T.’s neck cavity.

40a

The admission of the exhibit containing the photo-

graphs of the victim’s exposed skull presents a more

difficult issue. It is necessary that we develop the record

in more detail. In rendering findings in support of his

ruling on this issue, the military judge stated that the

pathologist “has testified that he requires |the photo-

graphic exhibit] to show and explain to the jury the

force and directions of the blows administered to the

head of the victim. ...’’ However, this finding is hardly

in accord with his actual testimony. During the refer-

enced testimony the witness had been asked by the mili-

tary judge whether the photographs were necessary to

assist him in communicating his opinions and conclusions

to the triers of fact. The witness had replied as follows:

Sir, I am sure I can get across anything that I need

to say with words. It is always better from a prac-

tical point of view so that there is no question of

misunderstanding, to have graphic representation.

And if that were at all possible I would certainly

want to go that way. I don’t personally find a re-

flected scalp particularly obnoxious or inflammatory.

[ guess this is a pathologist looking at something

quite differently from a lawyer or a judge. I don’t

know. I can certainly describe what happened, but

I think that there is a better chance of complete

understanding by all concerned who have to weigh

all the facts if this material were allowed. I don’t

believe it is any different from any other photo-

graphs.

Matters went awry shortiy after the exhibit containing

the photographs of C.T.’s exposed skull was displayed to

the triers of fact. While a number of photographs of the

victim’s remains had been displayed and provided to the

members prior to this point in the trial, this was the

first exhibit displayed that would likely be viewed as

gruesome or grotesque by a sizeable percentage of lay

4la

persons of normal sensitivity. In our view, the graphic

nature of the autopsy procedures shown in the two photo-

graphs visually overwhelms the depiction of internal

trauma to the victim’s skull. One of the nine court mem-

bers fainted during the witness’ test imony on the signifi-

cance of this exhibit. An immediate recess was called.

During an Article 39(a) proceeding, evidence was re-

ceived that the member suffered from a condition which

made him susceptible to fainting at the sight of blood or

injury. The physician treating the member recommended

his excusal from further participation in the trial. All

parties agreed, and the member was excused. Wh. n the

trial resumed the eight remaining members were advised

of the excusal, but not of the reason therefor.

In evaluating the members’ some reactions to the ex-

hibit in the context of the issue before us. it might be

well to examine certain aspects of the testimony of the

expert witness shortly before the excused member fainted.

The witness described the surgical procedure involved i

reflecting the scalp as being ‘“‘just as the Indians did.

[the scalp] then could be moved forward or back. In this

case, it was moved forward so that the scalp is covering

the face.” After alluding to an inspection of the brain

cavity, which procedure had not been performed at the

time the phot tographs in question were taken, the witness

explained: ‘What we have at at itopsy is this head, okay.

We still have the same head, and indeed. after the

autopsy and this skull cap is put back, you have a very

beautiful head.” * Just before the member fainted the

witness was explaining the reaction of a human head

blows striking at it from several directions. He com-

pared the head in such circumstances to a “tetherball.”

* Possibly the witness was involved in a well inte ‘nded attempt to

alleviate suspected uneasiness among the members at = point.

However, the tone of his test imony could be perceived as a form

of ghoulish titillation marked by gross insensitivity Peele the

victim. Trial advocates may find a lesson to be learned from this

incident.

ee ee ee Se

) +l, + . > .

BR: sed on our review of le en re record

Ul ‘a SSut We | na [ th a IT ir\ (it

} } , .

liseretion in admittin he photographs of

nosed 3k \V« iy no maw yHres1mMyp

. , }

from the fact that a member with a pec

) j } ; "

eondition fained while the exhib was be

ind cle eriber However this neiaen IS a

re abused

pertinent to

medical

display ec

factor which

we must evaluate in ass ne possible prejudice to _the

ippellant The military judge erred in admitting the

pnotogranDl DeCALSE nel) prodallve Value Was Cieariy

outweighed by the potential for prejudicial impact. The

‘ nace 4 } ‘ +h 22% »?

military judge's findin he expert “required” the

. " » |

Mmovograpns W nN an accurate representation of ne

expert s testimony An examination of that testimony)

4} ‘ ‘ } . } ] lL. Re =

retTiects na ne e@Ape) stopped Wel Sno} Ol declaring a

requirement ) f ne photograph evidence to com-

municate adequately with the triers of fact on the mat-

. , , . , 5

er of blows to the head of the victim. He hereby, ac-

ee ee ee +] nhotagranhe one @ had a limited

owiedYved Ihe Lit |) Lap j ; ( laGW « LITLILes

, )

Aa l ary Va {es

alk oe

The photographs rtraved the results of tr a tha

} } } ; ;

could just as easilv have been verbally described and read-

' _= : '

ily mprehended \ stl} necan be vn betwee!

Vy « } t t | ‘ I a afl

" , ; } » 4 P : , +h if

tnese pnotograpns and hat Oo] ne neck Cavity ol he Vic-

Lin (hur examinat n or tnese ex! hits convinces ~

. a } 5 » ] . . .

wou'd have been more difficult for the members to have

ialized a verbal description of the signs of interna

} ry ) } nna 7 17) intern | mnt) sions and bruises from

< tiie Lic Lil Li« 4 Luo: i availa I ist il

blows to the head. Perhaps, the most striking aspect ot

the challenges exhibit is that eolor photographs of the

exposed skull sit beside drawings which depict the traum:

; hallenged exh

The ph

itial for shock va

otographs aad ve

he pote ue,

record we conclude tha

instance is struck st

ibit

. 7

itt lo +

is intern-

, if eny-

Based on our

Evid. 403

1 favor of ex-

43a

In assessing prejudice, we cannot imagine that the eight

members felt good about their former associate’s fainting

at what was probably already a very uncomfortable mo-

ment in the proceeding. The question we must ask is

whether it is likely that they, or some of them, reacted

out of passion and sought to return findings of guilty to

vindicate the rights of the victim that they, and their

f rmer fellow member, had viewed. The record in this

case does not support such an inference. The evidence of

the appellant’s cuilt in this case. while it is cireymstantial

in nature, is overwhelming. We are satisfied that the

error in admitting the photographs was harmless insofar

as findings are concerned. We reach the same conclusion

with respect to sentence. The appellant received the man-

datory minimum sentence relating to confinement. We

are convinced that the other adjudged punishments of

dishonorable discharge, forfeiture of all pay and allow-

ances and reduction to airman basic were not the product

of a zealous overreaction to the gruesome nature of the

photographic evidence. Accordingly, we conclude that ¢?

y, we

llant suffered no prejudice.

appe

Duplicity Multiplicity

The murder specification alleges that the appellant “did,

at Bergstrom AFB, Texas, on or about 7 February 1987

with premediation, and while attempting to perpetrate the

offense of rape, murder [C.T.] by means of strangula-

tion.” Attrial, the defense moved to sever the two parts

of what was argued to be a duplicitous specification.

R.C.M. 905(b) (5). The military judge denied the motion

and ruled that the specification alleged only one offense.

murder, although two theories thereof. Article 118(1),

(4), UCMJ. See R.C.M. 307(c) (3), Discussion (G) (iv).

Appellate government counsel have invited our attention

to the excellent brief on the duplicity* issue which was

‘The Manual uses the term, “dupliciousness.” R.C.M. 307(c) (3),

Discussion (G)(iv). We have also noted that the adjective, “dupli-

Dee _ as _ Ss “* xX WF aieg ee ’ = ers Par a Ler errs

44a

submited by trial counsel. On the strength of the authori-

ties cited therein and other authorities revealed in the

course of our research, it appears that pleading two

theories of murder in one specification is consistent with

a well established precedent in civilian and military case

law. We conclude that the military judge’s ruling was

correct.

Article 118, UCMJ, describes four circumstances in

which one who kills another may be found guilty of mur-

der. These four means of murder are joined by the dis-

junetive word, “or.” The basic rule which allows for the

pleading of more than one statutory means of committing

an offense was explained in a Supreme Court opinion con-

struing a counterfeiting indictment:

The statute was directed against certain defined

modes for accomplishing a general object and de-

clared that the doing of either one of several specified

things, each having reference to that object, should

be punished. .. . We perceive no sound reason why

the doing of the prohibited thing in each and all of

the prohibitea modes may not be charged in one

count, so that there may be a verdict of guilty upon

proof that the accused had done any one of the things

constituting a substantive crime under the statute.

Cra? ' United States, 162 U.S. 625, 636. 16 S.Ct. 952,

955, 40 L.Ed. 1997, 1100 (1896). It must be noted that

the primary holding in Crain, which is not pertinent to

our consideration and is not discussed herein, was ex-

press!y overruled by the Supreme Court in Garland v.

Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772

(1914). However, the Crain Court’s treatment of the

duplicity issue, as set forth in the quoted material, has

survived as a recognized rule of construction. Turner v.

ee ua

cious,” has been used in lieu of “duplicitous” on occasion. See e.g.,

United States v. Hiatt, 27 M.J. 818 (A.C.M.R. 1988) (“duplicitous,”

in headnote 3 to the opinion is actually “duplicious” in the body,

27 M.J. at 820.)

45a

U.S., 396 U.S. 398, 420. 90 S.Ct., 642, 654, 24 L.Ed.2d

610, 625-626 (1970): United States v. McPhee rson, 7&2

F.2d 66, 68 (6th Cir.1986) : United States v. Olinger, 759

F.2d 1293, 1301 (7th Cir.1985); Price v. United States.

150 I'.2d 283, 285 (5th Cir.1945).

This particular duplicity rule was stated in another

early case, Ackley v. U.S.. 200 F. 217, 221 (8th Cir.1912)

as follows:

Being a statutory crime, the indictment must follow

the statute creating the offense. The exception is

that, if the statute denounces several things as a

crime, the different things thus enumerated in the

Statute being connected by the disjunctive ‘or,’ the

pleader must connect them by the conjunctive ‘and’

before evidence can be admitted as to more than the

one act. To recite that the defendant did the one

thing or another makes the indictment bad for un-

certainty. To charge the one thing and another does

not render the indictment bad for duplicity, and a

conviction follows if the testimony shows the defend-

ant to be guilty of either the one or the other thing

charged.

(Emphasis in original). Accord Bianchi v. United States.

219 F.2d 182 (8th Cir.1955): Troutman v. United States.

100 F.2d 628 (10th Cir.1939): United States v. Isabella

210 F.Supp. 281 (D.Mass.1962): United States v. Mellor,

71 F.Supp. 53 (D. Neb. 1946).

Of particular interest is a more recent state case, Stat.

v. Keele, 644 S.W.2d 435 (Tenn.Cr.App.1982), wherein

the Court held that the prosecution might proceed on a

count in an indictment which, as the specification in this

case, alleged hoth premeditated and felony murder of the

same victim. The Court concluded that the indictment

alleged “the commission of one offense—murder.” 644

S.W.2d at 439. However, the Court added the following:

“The allegation of the manrer in which the offense was

46a

committed is in alternate terms.” J/bid. (Emphasis

dae I} oT ourse ot en ine VY col ent V ne

Government’ eading theory in the case before us. We

hall now consider how the issue f duplicity has been

treated by mi ry appellate courts.

The Armv Board of Review. in addressing an alleged

instructional error, cited Crain, supra, as authority in

concluding: “When a single crime may he committed by

several modes or with either of several intents, it is proper

te charge in the coniunctive in a single count and a find-

ing of guilty upon proof of any one of the modes supports

a CC nviction. _ “ey T’nited States v, Broolce, 6 C.M.R. 10%,

115 (A.B.R.1952), pet. denied, 6 C.M.R. 130 (1952). Cf.

United States v. Branford, 2 C.M.R. 489 (A.B.R.1951),

which adopted the Crain rule but concluded that drunken

driving and reckless driving under Article 111, UCMJ, 10

I.S.C. $911. were separate offenses and were, thus, du-

»nlicitous when combined in one specification.

The Air Force Board of Review followed the same rea-

soning set forth in Crain and Brooke in a series of cases:

United States v. Voudren, 33 C.M.R. 722, 725 (A.F.B.R.

1963), pet. denied, 33 C.M.R. 486 (1963) (a specifica-

allecine certain indecent acts against a child is- not

tion a a

} ;

duplicitous regardless of whether each individual act in a

course of conduct might have constituted a separate of-

fense):5 United States v. French, 25 C.M.R. 851, 866,

(A.F.B.R.19

U.S.C.M.A. 171, 27 C.M.R. 245 (1959) (two specifica

tions each alleging multiple acts constituting the accused’s

~ a J ° i PrP f

958). aff’d ‘rev'd in part on other grounds, 10

‘ . i .

ylan to sell classified material to foreign representatives

were not duplicitous even though each act might have con-

stituted a separate offense): United States v. Luckey, 18

C.M.R. 604, 606 (A.F.B.R.1954), pet. denied, 18 C.M.R.

832 (1955) ithe allecation of two separate, but more or

5 The current Manual! an sis cites Voudren as an authority for

CM. 906 , 5 iscussion of what constitutes a aupilt ou

pleading MCM, A21-49 (1984)

e€ss Simuitaneous. thre atening acts against a superior goes

duplicitous specineation). See also U/niter

ré Create

States ». Francis, 12 C.M.R. 695 (A.F.B.R. 1953). pet.

denied, 18 C.M.R. 142 (1! 93), which recognized that a

specification alleging criminal acts occurring at divers

Limes 1S not duplicitous.

The 1969 Manual recited what annears to he a varia-

tion of the Crain test for duplicitous pleading: “One spec-

ification should nol allege more than one offense either

conjunctively or in the alternative ... However. if two

acts or a series of acts constitute one offense or jf an of-

f¢ nWSe 78 committed hy More than one means, they may he

alleged conjunctively.’” MCM 1969 | ev.), paragraph 28b

‘emphasis added). The underscored language. which is

directly applicable to the situation at hand, does not ap-

pear in the relevant discussion portion of the current

Manual. R.C.M. 307(c) (3), Diseussion (G) liv). How-

ever, it 1s clear enough to us that setting forth two theo-

ries of murder conjunctively in a single specification is

permitted by nearly a century of case law supporting this

form of pleading. We conclude that the military judge

did not err by denying the defense motion to sever the

murder specification. We must now consider the related

issue of multiplicity.

The appellant maintains that the felony murder lan-

ltiplicious for findings with premeditated

murder and attempted rape. Appellant cites as authority

the Court of Military Appeals’ treatment of similar situa-

tions in United States ». Dodson, 21 M.J. 237 (C.M.A

19861; United States v. Teeter, 16 M.J. 68 (C.M.A.1983

and, more recently, United States v. Hubbard. 28 M.J. 27

C.M.A.1989). In Dodson and Teeter, the accused had

heen found guilty, in separate specifications, of premedi-

tated murder and felony murder of the same victim as

well as the underlying felony. In each instance the Court

dismissed tne teiony murder beeincation aS fairly em-

48a

braced within and, thus, multiplicious for findings with

the other two specifications. Hubbard involved a slight

variation wherein the accused, although similarly charged,

was found guilty of the lesser included offense of unpre-

meditated murder, felony murder and the related felony.

In this instance the Court dismissed the charge and spe-

cification alleging unpremeditated murder, inasmuch as a

mandatory life sentence was prescribed only for the felony

murder. 28 M.J. at 34.

We find the multiplicity issue difficult since the guidance

provided by the Court of Military Appeals is not entirely

clear to us. In Teeter, the Court noted that the homicide

elements of felony murder are included within premedi-

tated murder and that the felony elements are included

within the separately charged felony. Therefore, felony

murder was determined to be multiplicious for findings

with the other two offenses. 16 M.J. at 72. In Dodson,

the Court relied upon its analysis in Teeter in dismissing

a felony murder specification. The more recent Hubbard

opinion muddies the water, in our view. There, the Court

chose not to apply the Teeter/Dodson formulation di-

rectly because the accused had been found guilty not of

premeditated murder, but of the lesser included offense

of unpremeditated murder. Article 118(2), UCMJ. In

dismissing the unpremeditated murder specification, the

Court cited Teeter as standing for the proposition “that,

if the same homicide is the subject of findings of pre-

meditated murder and felony murder, one should be set

aside.” 28 M.J. at 34.

We are confronted with a dilemma. If we were to ap-

ply the elements comparison test used in Teeter and Dod-

son, we would modify the murder specification by deleting

the felony murder language therefrom. However, the

message of Hubbard appears to be that an accused will

stand convicted of the same murder only once at the con-

clusion of appellate review. It can be argued that the

combining of two theories of murder in one specification

49a

achieves the result of only one murder conviction. There-

fore, if the Hubbard rationale is followed, no alteration

of the existing specification is indicated.

While we are unable to reconcile Hubbard completely

with the two earlier decisions, we believe the better course

is to apply the Teeter rule as it was stated by the Court

when it was formulated. We can discern no valid basis

for holding that the Government might avoid the multi-

plicity consequences of Teeter and Dodson by combining

two theories of murder in one specification as opposed to

pleading them separately. In his instructions on findings

the military judge quite properly treated the two murder

theories as if they were separate offenses. He advised the

members that, if they were to find only one of the two,

they might do so by an appropriate exception. Therefore.

the appellant, as was the accused in Hubbard, “is the sub-

ject of findings of premeditated murder and felony mur-

der,” even though the findings are combined in but one

specification. We conclude that the offense of felony mur-

der in the case before us is embraced within the combined

elements of premeditated murder and attempted rape.

We are reluctant to dismiss the felony murder lan-

guage when, as here, the evidence relating to that offense

has been reviewed by us and found to be factually and

legally sufficient to support a finding of guilty. However,

our findings multiplicity determination is based on a con-

struction of law. If we are mistaken in this construction,

our action is subject to correction. Article 67(d). UCM,

10 U.S.C. § 867(d): United States v. Johnson, 23 M..J.

209 (C.M.A.1987). See United States v. Coleman, 26

M.J. 407, 409 (C.M.A.1988).

Accordingly, we modify the Specification of Charge II

by deleting the words, “and while attempting to perpe-

trate the offense of rape.’’ The modified finding of pre-

meditated murder carries 2 mandatory minimum punish-

ment of confinement for life. MCM, Part IV. paragraph

43e(1) (1984). The military judge instructed the mem-

bers that the offenses of attempted rape and felony mur-

der were multiplicious for sentencing purposes. He fur-

ther instructed the members that they must consider only

one offense for sentencing purposes, i.e., murder, with-

out particularization. We appreciate that the military

judge was faced with a situation which presented a con-

siderable challenge in terms of formulating properly

tailored instructions. Having reassessed those portions

of the sentence other than confinement, we are convinced

that the related punishment elements of dishonorable dis-

charge, forfeiture of all pay and allowances and reduc-

tion to airman basic would have been adjudged even if

the military judge had dismissed the felony murder lan-

guage after findings at trial. We conclude that no ad-

justment of the appellant’s sentence is required in light

I 1g

of our action on appeal.

We should consider the approved sentence, which is

identical to that adjudged except for forfeitures, from

another aspect. Inasmuch as the appellant’s sentence in-

cluded a mandatory punishment of confinement for life,

it is appropriate that we consider whether this sentence

is un uly severe. See United States v. Ne lson, 28 M.J.

553 (A.C.M.R. 1989'. Based on our review of the record

and in consideration of the totality. of the circumstances

developed therein, we have concluded that the approved

sentence is warranted in this case and that it is not

unduly severe.

We have examined the record of trial, the assignment

of errors, the Government’s reply thereto and the oral

arguments of counsel. We have concluded that the find-

ings, as modified, and sentence are correct in law and

fact and that no error prejudicial to the substantial

rights of the accused was committed. United States. v.

Garner, 28 M.J. 634 (A.F.C.M.R. 1989). See United

States v. Callara, 21 M.J. 259, 264 (C.M.A. 1986). Ac-

cordingly, the findings of guilty, as modified, and sen-

tence are

AFFIRMED.

Senior Judge KASTL concurs.

Judge BLOMMERS

‘concurring ‘dissenting in part) :

From my review of the record, I cannot conclude that

the military judge’s ruling admitting the photographic

evidence in question (exhibit depicting the victim’s ex-

| 1) constitutes abuse of discretion. United

States v. Abel, 469 U.S. 45, 54-55, 105 S.Ct. 465. 470.

83 L.Ed.2d 450 (1984): United States vu. Mukes, 18 M.J.

3808 (C.M.A. 1984); United States v. Knudson, 4 U.S.

C.M.A. 587, 16 C.M.R. 161, 180 (1954) (Judge Latimer,

dissenting). As the majority opinion notes, the military

judge in his ruling on this and three other photographic

exhibits indicated they would be relevant in establishing

one of the sentencing aggravation factors the Government

would be required to prove before a capital sentence could

be imposed. See R.C.M. 1004(e) (7) (1). It appears to

me that this was the basis relied upon for admission of

| exhibit. However, as was the case with

the exhibit depicting the victim’s neck cavity, the exposed

skull exhibit was likewise relevant as to the issues of

intent and premeditation. See United States v. Be nford,

oi MJ. 518 {N.M.C.M.R. 1988). I question whether

evidence relevant only to a sentence aggravation factor

would be admissible before findings. See R.C.M. 1004

(b) (2)

In -my view, the principle underlying the Teeter-

Dodson-H ubbard trilogy is that an aécused cannot be

convicted twice for the murder of a single person. To do

otherwise, the Court in Teeter stated, “would leave ap-

pellant in the somewhat anomalous position of being con-

victed of two separate murder charges for one slaying.”

United States v. Teeter, 16 M.J. 68, 72 (C.M.A. 1983).

Or, as Chief Judge Everett expressed it in Hubbard:

We have held previously that, if the same homicide

the subject of findings of premeditated murder

and felony murder, one should be set aside. United

States v. Teeter, 16 M.J. 68 (CMA 1983). Clearly,

that principle applies where, as here, there are con-

victions of unpremeditated murder and felony mur-

der.

United States v. Hubbard, 28 M.J. 27, 34 (C.M.A. 1989)

(emphasis added). There is only one murder conviction

in this case. We founa nothing wrong with the manner

in which the Government elected to frame the murder

charge. When the ink dries on the final court-martial

order, the record should fairly characterize the full ex-

tent of the appellant’s criminal acts. I would not disturb

the approved findings of guilty.

W wv. S. GOVERNMENT PaRinTine OFrice; 1902 326355 59022

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